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EXPULSION OF THE PEESIDENT. 



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o i> I N I o isr 



HON. CHARLES SUMNER, OF MASSACHUSETTS, 



IN THE CASE OF THE 



IMPEACHMENT OF ANDREW JOHNSON, 



PRESIDENT OF THE UNITED STATES. 



WASHINGTON: 

O O V E R \ .M E N T PRINTING OFFICE 

ISGS. 



OPI>riON 



:? HON. CHARLES SUMNER, OF MASSACHUSETTS. 

IN THE CASE OF THE 

IMPEACHMENT OF ANDREW JOHNSON, 

PRESIDENT OF THE UNITED STATES. 



I voted against the rule of tlie Senate allowing Opinions to be filed in this 
proceeding, and regretted its adoption. "With some hesitation I now take 
advantage of the opportunity, if not the invitation, which it affoi-ds. Voting 
"guilty" on all the articles, I feel that there is no need of explanation or 
iipology. Such a vote is its own best defender. But I follow the example of 
others. 

BATTLE WITH SLAVERY. 

This is one of the last great battles with slavery. Driven from these legis- 
lative chambers, driven from the field of war, this monstrous power has found 
a refuge in the Executive Mansion, where, in utter disregard of the Constitution 
and laws, it seeks to exercise its ancient far-reaching sway. All this is very 
plain. Nobody can question it. Andrew Johnson is the impersonation of the 
tyrannical slave power. In him it lives again. He is the lineal successor of 
John C. Calhoun and Jefferson Davis ; and he gathers about him the same 
supporters. Original partisans of slavery north and south ; habitual compro- 
misers of great principles; maligners of the Declaration of Independence; poli- 
ticians without heart; lawyers, for whom a technicality is everything, and a 
promiscuous company who at every stage of the battle have set their faces 
against equal rights; these are his allies. It is the old troop of slavery, with 
a few recruits, ready as of old for violence — cunning in device, andheaitless in 
quibble. With the President at their head, they are now entrenched in the 
Executive Mansion. 

Not to dislodge them is to leave the country a prey to one of the most hate- 
ful tyrannies of history. Especially is it to surrender the Unionists of the 
rebel States to violence and bloodshed. Not a month, not a week, not a day 
should be lost. Tlie safety of the Ilcpuhlic requires action at once. The lives 
of innocent men must be rescued from sacrifice. 

I would not in this judgment depart from that moderntion which belongs to 
the occasion^ but God forbid that, when called to deal with so great an offender, 
I should affect a coldness which I cannot feel. Slavery has been our worst 
enemy, assailing all, murdering our children, filling our homes with mourning, and 
darkening the land with tragedy; and now it rears its crest anew, with Andrew 
Johnson as its representative. Through him it assumes once more to rule the 
Republic and to impose its cruel law. The enormity of his conduct is aggra- 
vated by his barefaced treachery. He once declared himself the Moses of the 



colored race Beliold Iiim now the Pharaoh. With such treachery in such a 
cause thei'e can be no parley. Every sentiment, every conviction, every vow 
against shwery must now be directed against him. Pharaoh is at the bar of 
the Senate for judgment. 

The formal accusation is founded on certain recent transgressions, enumerated 
in articles of impeachment, but it is wrong to suppose that this is the whole 
case. It is very wrong to try this impeachment merely on these articles. It 
is unpardonable to higgle over Avords and phrases when, for more than two 
years the tyrannical pretensions of this offender, now in evidence before the 
Senate, as I shall show, have been manifest in their terrible, heart-rending con- 
sequences. 

IMPEACHMENT A POLITICAL AND NOT A JUDICIAL PROCEEDING. 

Before entering upon the consideration of the formal accusation, instituted by 
the House of Representatives of the United States in their own name and in the 
name of all of the people thereof, it is important to understand the nature of the 
proceeding ; and here on the threshold we encounter the effort of the apologists 
who have sought in every way to confound this great constitutional trial with 
an ordinary case at Nisi Prius and to win for the criminal President an Old 
Bailey acquittal, where on some quibble the prisoner is allowed to go Avithout 
day. From beginning to end this has been painfully apparent, thus degrading 
the trial and baffling justice. Point by point has been pressed, sometimes by 
counsel and sometimes even by senators, leaving the substantial merits un- 
touched, as if on a solemn occasion like this, involving the safety of the Republic, 
there could be any other question. 
• The first effort was to call the Senate, sitting for the trial of impeachment, a 
court, and not a Senate. Ordinarily names are of little consequence, but it cannot 
be doubted that this appellation has been made the starting-point for those tech- 
nicalities which are so proverbial in courts. Constantly we have been reminded 
of what is called our judicial character and of the supplementary oath we have 
taken, as if a senator were not always under oath, and as if other things within 
the sphere of his duties were not equally judicial in character. Out of this 
plausible assumption has come that fine-spun thread which lawyers know so well 
how to weave. 

The whole mystification disappears when v,'e look at our Constitution, which 
in no way speaks of impeachment as judicial in character, and in no way speaks 
of the Senate as a court. On the contrary it uses positive language, inconsistent 
with this assumption and all its pretended consequences. On this head there 
can be no doubt. 

By the Constitution it is expressly provided that " the judicial jjoiver shall be 
vested in one Supreme Court and in such inferior courts as the Congress may 
from time to time ordain and establish," thus positively excluding the Senate 
from any exercise of "the judicial power." And yet this same Constitution 
provides that "the Senate shall have the sole power to try all impeachments." 
In the face of these plain texts it is impossible not to conclude that in trying 
impeachments senators exercise a function vrhich is not regarded by the Consti- 
tution as "judicial," or, in other words, as subject to the ordinary conditions of 
judicial power. Call it senatorial or political, it is a power by itself and subject 
to its own conditions. 

Nor can any adverse conclusion be drawn from the unathorized designation 
of court, which has been foisted into our proceedings. This term is very 
expansive and sometimes very insignificant. In Europe it means the household 
of a prince. In Massachusetts it is still applied to the legislature of the State, 
which is known as the General Court. If applied to the Senate it must be inter- 
preted by the Constitution, and cannot be made in any respect a source of power 
or a constraint. 



It is difficult to understand bow this term, which playj^ such a part in present 
pretensions, obtained its vogue. It does not appear in English impeachments, 
although there is reason for it there, which is not found here. From ancient 
times Parliament, including both houses, has been called a court, and the House 
of Lords is known as a court of appeal. The judgment on English impeachments 
embraces not merely removal from othce, as under our Constitution, but also 
punishment. And yet it does not appear that the lords sitting on impeachments are 
called a court. They are not so called in any of the cases, from the first in 
1330, entitled simply, " Impeachment of Roger Mortimer, Earl of March, for 
Treason," down to the last in 1806, entitled, " Trial of Right Honorable Henry 
Lord Viscount Melville before the Lords House of Parliament in Westminster 
for High Crimes and Misdemeanors whereof he was accused in certain articles 
of Impeachment." In the historic case of Lord Bacon, we find, at the first 
stage, this title, " Proceedings in Parliament against Francis Bacon Lord 
Verulam ;" and after the impeachment was presented, the simple title, " Pro- 
ceedings in the House of Lords." Had this simplicity been followed in our 
proceedings, one source of misunderstanding would have been removed. 

There is another provision of the Constitution which testifies still further, and, 
if possible, more completely. It is the limitation of the judgment in cases^of 
impeachment, making it political and nothing else. It is not in the nature of 
2^umshinent, but in the nature of j^^otcction to the Republic. It is confined to 
removal from office and disqualification ; but, as if aware that this was no pun- 
ishment, the Constitution further provides that this judgment shall be no impedi- 
ment to indictment, trial, judgment, and punishment ''according to law." Thus 
again is the distinction declared between an impeachment and a proceeding 
"according to law." The first, which is political, belongs to the Senate, which 
is a political body ; the latter, which is judicial, belongs to the courts, which 
are judicial bodies. The Senate removes ffom office; the courts punish. I am 
not alone in drawing this distinction. It is well known to all who have studied 
the subject. Early in our history it was put forth by the distinguished Mr. 
Bayard, of Delaware, the father of senators, in the case of Blount, and it is 
adopted by no less an authority than our highest commentator, Judge Story, 
who was as much disposed as anybody to amplify the judicial power. In 
speaking of this text, he says that impeachment ^'is not so much designed to 
punish the offender as to secure the State against gross official misdemeanors ; 
that it touches neither his person nor his property, but simply divests him of Ids 
political capacity. {Story, Commentaries, vol. 1, sec. 803.) All this seems to 
have been forgotten by certain apologists on the present trial, who, assuming that 
impeachment was a proceeding "according to law," have treated the Senate to 
the technicalities of the law, to say nothing of the law's delay. 

As we discern the true character of impeachment under our Constitution we 
shall be constrained to confess that it is a political proceeding before a political 
body, with political purposes ; that it is founded on political offences, proper for 
the consideration of a political body and subject to a political judgment only. 
Even in cases of treason and bribery the judgment is political, and nothing more. 
If I were to sum up in one word the object of impeachment under our Consti- 
tution, meaning that M'hich it has especially in view, and to which it is practi- 
cally limited, I should say Expulsion fro77i Office. The present question is, shall 
Andrew Johnson, on the case before the Senate, be expelled from office. 

Expulsion from office is not unknown to our proceedings. By the Constitu- 
tion a senator may be expelled with " the concurrence of two-thirds ;" precisely 
as a President may be expelled with "the concurren(?e of two-thirds." In each 
of these cases the same exceptional v^ote of two-thirds is required. Do not 
the two illustrate each other? From the nature of things they are essentially 
similar in character, except that on the expulsion of the President the motion is 
made by the House of Representatives at the bar of the Senate, while on the 



expulsion of a senator the motion i? made by a senator. And liow can we 
require a technicality of proceeding in the one which is rejected in the other? 
If the Senate is a court, bound to judicial forms on the expulsion of the Presi- 
dent, must it not be the same on the expulsion of a senator? But nobody 
attributes to it any such strictness in the latter case. Numerous precedents 
attest how, in dealing with its own members, the Senate has sought to do sub- 
stantial justice without reference to forms. In the case of Blount, which is the 
first in our history, the expulsion was on the report of a committee, declaring 
him "guilty of a high misdemeanor, entirely inconsistent with his public trust 
and duty as a senator." ( Annals of Congress, 15th Congress, 1797, p. 44.) 
At least one senator has been expelled on simple motion, even without reference 
to a committee. Others have been expelled without any formal allegations or 
formal proofs. 

There is another provision of the Constitution which overrides both cases. 
It is this : " Each house may determine its rules of proceeding." The Senate 
on the expulsion of its own members has already done this practically and set 
an example of simplicity. But it has the same power over its " rules of pro- 
ceeding " on the expulsion of the President ; and there can be no reason for 
simplicity in the one case not equally applicable in the other. Technicality is 
as little consonant with the one as with the other. Each has for its object the 
Public Safety. For this the senator is expelled ; for this, also, the President is 
expelled. Sahis jyojndi suprcma lex. The proceedings in each case must be 
in subordination to this rule. 

There is one formal difference, under the Constitution, between the power to 
expel a senator and the power to expel the President. The power to expel a 
senator is unlimited in its terms. The Senate may, "with the concurrence of 
two-thirds, expel a member," nothing being said of the offence ; whereas the 
President can be expelled only "for treason, bribery, or other Idgh crimes and 
misdemeanors." A careful inquiry will show that, under the latter words, there 
is such a latitude as to leave little difference between the two cases. This brings 
us to the question of impeachable offences. 

POLITICAL OFFENCKS ARE IMPEACHABLE OFFENCES. 

So much depends on the right understanding of the character of this proceed- 
ing, that even at the risk of protracting this discussion, I cannot hesitate to con- 
sider this branch of the subject, although what I have already said may render 
it superfluous. WJiat are impeachahlc offences has been much considered in this 
trial, and sometimes with very little appreciation of the question. Next to the 
mystification from calling the Senate a court has been that other mystification 
from not calling the transgressions of Andrev/ Johnson impeachable offences. 

It is sometimes boldly argued that there can be no impeachment under the 
Constitution of the United States, unless for an offence defined and made 
indictable by an act of Congress ; and, therefore, Andrew Johnson must go 
free, unless it can be shown that he is such an offender. But this argument 
mistakes the Constitution, and also mistakes the whole theory of impeachment. 

Il mistakes the Constitution in attributing to it any such absurd limitation. 
The argument is this : Because in the Constitution of the United States there 
are no common- lavv^ crimes, therefore there are no such crimes on which an 
impeachment can be maintained. To this there are two answers on the present 
occasion ; first, that the District of Columbia, where the President resides and 
exercises his functions, was •once a part of Maryland, where the common law 
prevailed; that when it came under the jurisdiction of the United States it brought 
with it the whole body of the law of Maryland, including the common law, and 
that at this day the common law of crimes is still recognized here. But the 
second answer is stronger still. By the Constitution Expulsion from Office is " on 



impeachment for and conviction of treason, bribery, or other high crimes and 
misdemeanors ;^^ and this, according to another clause of the Constitution, is "the 
supreme law of the land." Now, when a constitutional provision can be executed 
without superadded legislation, it is absurd to suppose that such superadded 
legislation is necessary. Here the provision executes itself without any re-en- 
actment ; and, as for the definition of "treason " and " bribery " we resort to the 
common law, so for the definition of "high crimes and misdemeanors" we resort 
to the parliamentary law and the instances of impeachment by which it is illus- 
trated. And thus clearly the whole testimony of English history enters into 
this case Avitli its authoritative law. From the earliest text-writer on this sub- 
ject ( Woodeson, Lechires, vol. II, p. 601) we learn the undefined and expansive 
character of these offences ; and these instances are in point now. Thus, where 
a lord chancellor has been thought to put the great seal to an ignominious treaty; 
a lord admiral to neglect the safeguard of the seas ; an ambassador to betray 
his trust ; a privy councillor to propound dishonorable measures ; a confidential 
adviser to obtain exorbitant grants or incompatible employments, or where any 
magistrate has attempted to subvert the fundamental law or introduce arhitary 
poiver ; all these are high crimes and misdemeanors, according to these prece- 
dents by which our Constitution must be interpreted. How completely they 
cover the charges against Andrew Johnson, whether in the formal accusation or 
in the long antecedent transgressions to which I sliall soon call attention as an 
essential part of the case nobody can question. 

Broad as this definition may seem, it is in harmony Avitli the declared ophiions 
of the best minds that have been turned m this direction. Of these none so great 
as Edmund Burke, who, as manager on the impeachment of Warren Hastings, 
excited the admiration of all by the varied stores of knowledge and philosophy, 
illumined by the rarest eloquence, with which he elucidated his cause. These, 
are his words : 

It is by tnis tribunal that statesmen who abuse their power are tried before statesmea 
and by statesmen, xipon solid principles of state morality. It is here that those who by an 
abuse of poiccr have polluted the spirit of all laics can never hope for the least protection from 
any of its forms. It is here that those who have refused to conform themselves to the pro- 
tection of law can never hope to escape through any of its defects. (Bond, Speeches on 
Trial of Hastings, vol. 1 p. 4.) 

The value of this testimony is not diminished, because the orator spoke as a 
manager. By a professional license an advocate may state opinions v/hich are 
not his own ; but a manager cannot. Representing the House of Representa- 
tives and all the people, he speaks with the responsibility of a judge, so that 
his words may be cited hereafter. In saying this I but follow the claim of Mr. 
Fox. Therefore, the words of Burke are as authoritative as beautiful. 

In different but most sententious terms, Mr. Hallam, who is so great a light 
in constitutional history, -thus exhibits the latitude of impeachment and its com- 
prehensive grasp : 

A minister is answerable for the justice, the honesty, the utility of all measures emanating' 
from the Crown, as ictll as their legality; and thus the executive administration is or ought 
to be subordinate in all great matters of policy to the superintendence and virtual control of 
the two houses of Parliament. (Hallam, Constitutional History, vol. 2, chap. 12.) 

Thus, according to Hallam, even a failure in justice, honesty, and utility, as 
well as in legality, may be the ground of impeachment ; and the administration 
should in all great matters of policy be subject to the two houses of Parliament — 
the House of Commons to impeacli and the House of Lords to try. Here again 
the case of Andrew Johnson is provided for. 

Our best American lights are similar in character, beginning with the Feder- 
alist itself. According to this authority impeachment is for " those oftences 
which proceed from ilia misconduct of jmhlic men, or, in other words, from the 
abuse or violation of some public trust ; and they may with peculiar propriety 
be ^qqvuqA. political, as they i elate to injuries done immediately to society itself" 



(No. 65.) If ever injuries v/ere done immediately to society itself; if ever there 
was an abuse or violation of public trust ; if ever tliere was misconduct of a 
public m.iu ; all these are now before us in the case of Andrew Johnson. The 
Federalist has been echood ever since by all who have spoken with knowledge 
and without prejudice. First came the respected corameutator, Rawle, who 
specifies among causes of impeachment " the fondness for the individual exten- 
sion of power;" "the influence of party and prejudice;" "the seductions of 
foreign states;" "the baser appetite for illegitimate emolument;" and "the 
involutions and varieties of vice too many and too artful to be anticipated, 
by positive law;" all resulting in what the commentator says are "not inaptly 
termed political offences^ (Page 19.) And thus Rawle unites with the 
Federalist in stamping upon impeachable oftences the epithet " political." 
If in the present case there has been on the part of Andrew Johnson no 
base appetite for illegitimate emolument and no yielding to foreign seduc- 
tions, there has been most notoriously the influence of party and prejudice, also 
to an unprecedent degree an individual extension of power, and an involution 
and variety of vice impossible to be anticipated by positive law, all of which, 
in gross or in detail, is impeachable. Here it is in gross. Then comes Story, 
who, writing with the combined testimony of English and Amei'ican history 
before him, and moved only by a desire of truth, records his opinion with all the 
original emphasis of the Federalist. His words are like a judgment. According 
to him the process of impeachment is intended to reach " personal misconduct, 
or gross neglect, or usurpation or habitual disregard of the public interests in 
^he discharge of the duties of jmlitical office ;'' and the commentator adds that 
it is " to be exercised over oftences committed by public men in violation of 
their public trust and duties ;" that " the offences to which it is ordinarily 
applied are of a political character;" and that strictly speaking " the power 
partakes of a j)olitical character." {Story's Commentaries, vol. 2, § 746, 764 ) 
Every Avord here is like an Kgis for the present case. The later commentator, 
Curtis, is, if possible, more explicit even than Story. According to him an 
"impeachment is not necessarily a trial for crime;" "its purposes lie wholly 
beyond the penalties of the statute or customary law ;" and this commentator 
does not hesitate to say that it is a " proceeding to ascertain ivhetker cause exists 
^ or removing a puhlic officer from office;'" and he adds that "such cause of 
removal may exist where no oftence against public law has been committed, as, 
where the individual has, from immorality or imbecility, or maladministration, 
become unfit to exercise the office^ {Curtis on the Constitution, j)- 360.) Here 
again the power of the Senate over Andrew Johnson is vindicated, so as to 
make all doubt or question absurd. 

I close this question of impeachable oftences by asking you to consider that 
all the cases which have occurred in our history are in conformity with the rule 
which so many commentators have announced. The several trials of Pickering, 
Chase, Peck, and Humphreys exhibit its latitude in different forms. Oflicial 
misconduct, including in the cases of Chase and Humphreys offensive utterances, 
constituted the high crimes and misdemeanors for which they were respectively 
arraigned. These are precedents. Add still further, that Madison, in debate 
on the appointing power, at the very beginning of our government, said : " I con- 
tend that the wanton removal of meritorious officers would subject the President 
to impeachment and removal from his own high trust." {Elliot's Debates, voh 
4, p. 141.) But Andrew Johnson, standing before a crowd, said of meritorious 
officers that " he would kick them out," and forthwith proceeded to execute his 
foul-mouthed menace. How sm;ill was all that Madison imagined ; how small 
was all that was spread out in the successive impeachments of our history, if 
gathered into one case, compared with the terrible mass now before ns. 

From all these concurring authorities, English and American, it is plain that 
impeachment is a power broad as the Constitution itself, and applicable to the 



President, Vice President, and all civil officers tlirough whom the republic suffers 
or is in any way imperilled. Show me an act of evil example or infiueuce com- 
mitted by a President, and I show you an impeachable offence, which becomes 
great in proportion to the scale on which it is done, and the consequences which 
are menaced. The Republic must receive no detriment ; and impeachment is one 
of the powers of the Constitution by which this sovereign rule is maintained. 

Ui\TECH.MICAL FORM OF PROCEDURE. 

The Form of Procedure is a topic germane to the last head, and helping to 
illustrate it. Already it has been noticed in considering the political character 
of impeachment ; but it deserves further treatment by itself. Here we meet the 
same latitude. It is natural that the trial of political offences, before a political 
body, with a political judgment only, should have less of form than a trial at 
common law; and yet tliis obvious distinction is constantly disregarded. The 
authorities, whether English or American, do not leave this question open to doubt. 

An impeachment is not a technical proceeding, as at nhi irrius q\ in a county 
court, where the rigid rules of the common law prevail. On the contrary, it is 
a proceeding according to parliamentary law. with rules of its own, unknown in 
ordinary courts. The foi-mal statement and reduplication of words, which con- 
stitute the stock-in-trade of so many lawyers, are exchanged for a broader man- 
ner moi'e consistent with the transactions of actual life. The precision of history 
is enough without the technical precision of an indictment. In declaring this 
rule I but follow a memorable judgment in a case which occupied the attention 
of England at the beginning of the last century. I refer to the case of the 
preacher Sacheverell, impeached of high crimes and misdemeanors on account 
of two sermons, in which he put forth the doctrine of non-resistance, and denounced 
the revolution of 1688, by which Euglish liberty was saved. After the argu- 
ments on both sides, the judges on questions from the Lords answered that by 
the law of England and constant practice " the particular words supposed lo be 
criminal ought to be specified in indictments." And yet, in face of this declara- 
tion b}' the judges of England of a familiar and indisputable rule of tlie common 
law, we hftve the rule of parliamentary law, which was thus set forth : 

II is rasolecd by the lords spiritual and temporal in Parliament assembled, That by the law 
aud usage of Parliameut iu prosecutions by impeachments for high crimes and misdemeanors 
by writing or speaking, the particular words supposed to be criminal are not necessary to be 
expressly specified in such iiiipeachincnts. {HowelVs State Trials. Aol. 15, p. 4(37.) 

The judgment here does not extend in terms beyond the case iu hand ; but 
plainly the principle announced is that iu impeachments the technicalities of the 
common law are out of place, and the proceedings are substantially according to 
the rule of reason. A mere technicality, much more a quibble, such as is often 
so efficacious on a demurrer, is a w^retched anachronism when we are considering 
a question of history or political duty. Even if tolerated on the impeachment 
of an inferior functionary, such a resort must be disclaimed on the trial of a Chief 
Magistrate, involving the Public Safety. 

The technicalities of the law were made for pi-otection against power, not f -r 
the immunity of a usurper or a tyrant. They are respectable when set up for 
the safeguard of the weak, but they are out of place on impeachments. Here 
again I cite Edmund Eurke : 

God forbid that those who cannot defend themselves upon tlieir merits aud their actions 
may defend themselves behind those fences and intreuchmeuts that are made to secure the 
liberty of the people ; that power and the abuses of power sliould cover themselves by those 
things which were made to secure liberty. (Bond^s Trial of Hastings, vol. 1, p. 10.) 

Never was tliere a case where this principle, belonging to the law of impeach- 
ment, was more applicable than now. 

The origin of impeachment in our own Constitution and contemporary 
authority vindicate this very latitude. One of the apologists sought to sustain 



10 

himself in an argument against this latitude, by insisting that it was with much 
hesitation, and only at the last moment, that this jurisdiction over impeachment 
was originally conferred on the Senate. This is a mistake, as will appear from 
a simple statement. The proposition to confer this jurisdiction on the Supreme 
Court was made before it had been determined that the judges should be 
appointed by the President with the advice and consent of the Senate. The 
latter conclusion was reached by a unanimous vote of the convention 7th Sep- 
tember, 1787. On the next day, Sth September, Roger Sherman raised the objec- 
tion, that the Supreme Court was " improper to try the President because the 
judges would be appointed by him." This objection prevailed, and the trial 
was at once intrusted to the Senate, by the vote of all the States with one 
exception ; and then immediately thereafter, on the same day, the scope of 
impeachment was extended from " treason to bribery," so as to embrace " other 
high crimes and misdemeanors," and, thus intrusted and thus enlarged, it was 
made to embrace " the Vice-President and other civil officers of the United 
States." 

From this simple narrative it appears, that, Vv'hile the Supreme Court, a judi- 
cial body, was contemplated for the trial of impeachments, the jurisdiction was 
restrained to two well-known crimes at common law, which have since been 
defined by statutes of the United States ; but this jurisdiction, when confided 
to the Senate, a ivMtlcal body, was extended to political offences, in the trial 
of which a commensurate discretion followed from the nature of tlie case. It 
was in this light that the proceeding was explained by the Federalist, in words 
which should be a guide to us now : 

The nature of the proceeding can never he tied down by surk strict rides, either in the 
delineation of the ofience by the prosecutors or in the construction of it by tlie judges, as in 
common cases serve to limit the discretion of couits in favor of personal security. (Federal- 
ist, No. 65.) 

This article was by Alexander Hamilton, writing in concert with James 
Madison and John Jay. Thus by the highest authority at the adoption of the 
Constitution we frnd that impeachment " can never be tied down by strict rules," 
and that this latitude is applicable to " the delineation of the offence," meaning 
thereby the procedure or pleading, and also to the "construction of theeffence," 
in both of which cases the " discretion " of the Senate is enlarged beyond that 
of ordinary courts. 

RULES OF EVIDE.\CB. 

From the form of procedure I pass to the Rules (if Evidence ; and here again 
the Senate must avoid all technicalities and not allow any artificial rule to shut 
out the truth. It Y>'Ould allow no such thing on the expulsion of a senator. 
How can it allow any such thing on the expulsion of a President 1 On this 
account I voted to admit all evidence that was offered during the trial, believing, 
in the first place, that it ought to be heard and considered ; and, in the second 
place, that, even if it were shut out from these proceedings, it could not be shut 
out from the public or be shut out from history, both of which must be the ulti- 
mate judges. On the impeachment of Prince Polignac and his colleagues of 
the cabinet, in 1830, for signing the ordinances which cost Charles X his throne, 
some forty witnesses were sworn Avithout objection, in a brief space of time, and 
no testimony was excluded. An examination of the two volumes, entitled 
Proces dcs Derniers Minist?-es de Charles X will confirm what I say. This 
example was to my mind not unworthy of imitation on the present occasion. 

There are other rules, which it is not too late to profit by. One of tliese 
relates to the burden of proof and is calculated to have a practical bearing. 
The other relates to matters of which the Senate will take cognizance without 
any special proof, thus importing into the case unquestionable evidence, which 
explains and aggravates the transgressions charged. 



11 

(1.) Look carefully at tlie object of this trial. Primarily it is for the expul- 
sion of the President from office. Its motive is not punishment, not vengeance, 
but the Puhlic Safety. Nothing less than this could justify the ponderous pro- 
ceeding. It will be for the criminal courts to award the punishment due to his 
offences. The Senate considers only how the safety of the people, which is the 
supreme law, can be best preserved ; andto this end the ordinary rule of evi- 
dence is reversed. If on any point you entertain doubts, the benefit of those 
doubts must be given to your country ; and this is the supreme law. When 
tried on an indictment in the criminal courts Andrew Johnson may justly claim 
the benefit of your doubts ; but at the bar of the Senate on the question of his 
expulsion from office, his vindication must be in every respect and on each 
charge beyond a doubt. He must show that his longer continuance in office is 
not inconsistent with the Puhlic Safety : 

Or, at least so prove it, 
That the probation bear no hinf^e or loop 
To hang a doubt oo. 

Anything short of this is to trifle with the Republic and its transcendent for- 
tunes. 

It is by insisting upon doubts that the apologists of the Presidetit, at the bar 
and in the Senate, seek to save him. For myself, I can see none such, but 
assuming that they exist, then should they be marshalled for our country. This 
is not a criminal trial, where the rule prevails: better that many guilty men 
should escape than one innocent man should suffer. This rule, which is so 
proper in its place, is not applicable to a proceeding for expulsion from office ; 
and who will undertake to say that any claim of office can be set against the 
Public Safety ? 

In thus stating the just rule of evidence, I do little more than apply those 
time-honored maxims of jurisprudence, which require that every interpretation 
shall be always in favor of liberty. Early in the common law we were told that 
he is to be adjudged impious and cruel who does not favor liberty : impius r.t 
arudelis judicandics est- qui libertatl non favet. Blackstone, whose personal 
sympathies were with power, is constrained to confess that "the law is always 
ready to catch at anything in favor of liberty." [Blackstonc's Commentarus, 
vol. 2, J). 94.) But liberty and all else are contained in the Public Safety ; they 
depend on the rescue of the country from a presidential usurper. Therefore 
should wenow, in the name of tlie law, "catch at anything" to save the Republic. 

2. There is another rule of evidence which, though of common acceptance in 
the courts, has peculiar value in this case, where it must exercise a decisive 
"influence. It is this : Courts will take judicial cognizance of certain matters, 
ivithout any special proof on the trial. Some of these are of general knowledge, 
and others are within the special knowledge of the court. Among these, accora- 
ing to express decision, are the frame of government and the public officers 
administering it; the accession of the Chief Executive ; the sitting of Congress 
and its usual course of proceeding; the usual course of travel ; the ebbs and flows 
of the tide ; also wliatever ought to he generally known within the limits of thi 
jurisdiction, including the history of the country. Besides these matters of geti- 
eral knowledge a court will take notice of its own records, the conduct of its own 
officers, and whatever passes in its own presence or under its own eyes. For 
all this I cite no authority ; it is superfluous. I add a single illustration from 
the great English commentator : " If a contempt be committed in the face of the 
court, the offender maybe instantly apprehended and imprisoned at the discretion 
of the judges, without any further proof or examination." {Blackstonc's Com- 
mentaries, vol. 4., p. 286.) 

If this be the rule of courts, a fortiori it must be the rule of the Senate on 
impeachments ; for we have seen that; when sitting for this purpose, the Senate^ 
enjoys a latitude of its own. Its object is the- Public Safety, and, therefore, no 



12 

aid for the arrival at truth cau be rejected. No gate can be closed. Bat here 
is a g-ate opened by the sages of the law and standing open alwaj^s, to the end 
that justice may not fail. 

Applying this rule to the present proceeding, it will be seen at once how it 
brings before the Senate, without any further evidence, a long catalogue of crime, 
affecting the character of the President beyond all possibility of defence, and 
serving to explain the latter acts on which the impeachment is founded. It was 
in this chamber, in the face of the Senate and the ministers of foreign powers, 
and surrounded by the gaze of thronged galleries, that Andrew Johnson exhib- 
ited himself in beastly intoxication while he took his oath of otiice as Vice- 
President ; and all that he has done since is of record here. Much of it appears 
on our journals. The rest is in authentic documents published by the order of 
the Senate. Never was a record more complete. 

Here in the Senate we know officially how he has made himself the attorney 
of slaver^' — the usurper of legislative power — the violator of law — the patron of 
rebel.'i— the helping hand of rebellion — the kicker from office of good citizens — the 
open bung-hole of the treasury — the architect of the " whiskey ring" — the stum- 
l)!ing block to all good laws by wanton vetoes and then by criminal hindrances ; 
all these things are known here beyond question. To the apologists of the 
President, who set up the quibbling objection that they are not alleged in the 
articles of impeachment, I reply that, even if excluded on this account from 
judgmsent, they may be treated as evidence. They are the reservoir from which to 
draw in determining the true character of the latter acts for which the President 
is arraigned, and especially the intent by which he was animated. If these latter 
were ah:!ne, without connection with the transgressions of the past, they would 
have remained unnoticed. Impeachment would not have been ordered. It is 
because they are a prolongation of that wickedness, under which the country has 
so long suffered, and spring from the same bloody fountain, that they are now 
presented for judgment. They are not alone ; nor can they be faithfully con- 
sidered without drawing upon the past. The story of the God Thor in Scandi- 
navian mytholo£:y is revived, whose drinking-horn could not be drained by the 
strongest quafter, for it communicated with the vast and inexhaustible ocean, 
Andrew Johnson is our God Thor, and these latter acts for which he stands 
impeached are the drinking-horn whose depths are unfathomable. 

OUTLI.XR OF TRA.\SGRESSIOi\S OF ANDREW JOHi\SO\. 

From this review of the character of this proceeding,, showing how it is polit- 
ical in character — before a political body — and with a political judgment, being 
expulsion from office and nothing more ; then how the transgressions of the 
President, in their protracted line, are embraced under "impeachable offences;" 
then how the form of procedure is liberated from the ordinary technicalities of 
the law ; and lastly how unquestionable rules of evidence open the gates to over- 
whelming testimony, I pass now to the consideration of this overwhelming tes- 
timony and how the present impeachment became a necessity. I have already 
called it one of the last great battles with slavery. See now how the battle 
lugau. 

Slavery in all its pretensions is a defiance of law ; for it can have no law in 
its support. Whoso becomes its representative must act accordingly; and this 
is the transcendent crime of Andrew Johnson. For the sake of slavery and to 
uphold its original supporters in their endeavors to continue this wrong under 
another name, he has set at defiance the Constitution and laws of the land, and 
he has accompanied this unquestionable usurpation by brutalities and indecen- 
cies in office without precedent, unless we go back to the Roman emperor fid- 
dling, or the French monarch dancing among his minions. This usurpation, 
with its brutalities and indecencies, became manifest as long ago as the winter 



13 

of 1866, when, being President, and bound by his oath of office to preserve, pro- 
tect, and defend the Constitution, and to take care that the laws are faithfully 
executed, he took to himself legislative powers in the reconstruction of the rebel 
States, and, in carrying forward this usurpation, nullified an act of Congress, 
intended as the corner-stone of reconstruction, by virtue of which rebels are 
excluded from office under the government of the United States, and thereafter, 
in vindication of this misconduct, uttered a scandalous speech in which he openly 
charged members of Congress with being assassins, and mentioned some by 
name. Plainly he should have been impeached and expelled at that early day. 
The case against him was complete. That great patriot of English history. 
Lord Somers, has likened impeachment to Goliath's sword hanging in the tem- 
ple to be taken down only when occasion required ; but if ever there v/as an 
occasion for its promptest vengeance it was then. Had there been no failure at 
that time we should be now nearer by two years to restoration of all kinds, 
whether political or financial. So strong is my conviction of the fatal remiss- 
ness of the House, that I think the Senate would do a duty in strict harmony 
with its constitutional place in the government, and the analogies of judicial 
tribunals so often adduced, if it reprimanded the House of Representatives for 
this delay. Of course the Senate could not originate an impeacliment. It could 
not take down the sword of Goliath. It must wait on the House, as the coui't 
waits on the grand jury. But this waiting has cost the country more than can 
be told. 

Meanwhile the President proceeded in his transgressions. There is nothing 
of usurpation which he has not attempted. Beginning with an assumption of 
all power in the rebel States, he has shrunk from nothing in the maintenance of 
this unparalleled assumption. This is a plain statement of fact. Timid at first, 
he grew bolder and bolder. He saw too well that his attempt to substitute him- 
self for Congress in the work of reconstruction was sheer usurpation, and, there- 
fore, by his Secretary of State, did not hesitate to announce that " it must be 
distinctly understood that the restoration will be subject to the decision of Con- 
gress." On two separate occasions, in July and September, 1865, he confessed 
the power of Congress over the subject ; but when Congress came together in 
December, this confessor of congressional power found that he alone had this 
great prerogative. According to his new-fangled theory. Congress had nothing 
to do but admit the States with the governments which had been instituted 
through his will alone. It is difficult to measure the vastuess of this usurpation, 
involving as it did a general nullification. Strafford was not bolder, when, 
speaking for Charles I, he boasted that " the little finger of prerogative was 
heavier than the loins of the law ;" but these words helped the proud minister 
to the scaffold. No monarch, no despot, no Sultan, could claim more than an 
American President ; for he claimed all. By his edict alone governments were 
organized, taxes were levied, and even the fi'anchises of the citizen were deter- 
mined. 

Had this assumption of power been incidental, for the exigency of the moment, 
as under the pressure of war, and especially to serve the cause of human rights, 
to which before his elevation tlie President had professed such vociferous 
devotion, it might have been pardoned. It would have passed into the chapter 
of unauthorized acts which a patriot people had condoned. But it was the oppo- 
site in every particular. Beginning and continuing in usurpation, it was hateful 
beyond pardon, because it sacrificed the rights of Unionists, white and black, 
and was in the interest of the rebellion and of those very rebels who had been 
in arms against their country. 

More than one person was appointed provisional governor who could not 
take the oath of office required by act of Congress. Other persons in the same 
predicament were appointed in the revenue service. The effect of these appoint- 
ments was disastrous. They were in the nature of notice to rebel? everywhere, 



14 

that participation in the rebellion was no bar to office. If one of their number 
could be appointed governor, if another could be appointed to a confidential 
position in the Treasury Department, then there was nobody on the long list of 
blood who might not look for preferment. And thus all offices from governor 
to constable were handed over to a disloyal scramble. Rebels crawled forth 
from their retreats. Men who had hardly ventured to expect their lives were 
now candidates for office, and the rebellion became strong again. The change 
was felt in all the gradations of government, whether in States, counties, towns, 
or villages. Rebels found themselves in places of trust, while the true-hearted 
Unionists, who had watched for the coming of our flag and ought to have 
enjoyed its protecting power, were driven into hiding-places. AH this was 
under the auspices of Andrew Johnson. It was he who animated the wicked 
crew. He was at the head of the work. Loyalty everywhere was persecuted. 
White and black, whose only offence was th;it they had been true to their coun- 
try, were insulted, abused, murdered. There was no safety for the loyal man 
except within the flash of our bayonets. The story is as authentic as hideous. 
More than two thousand murders have been reported in Texas alonesince the 
surrender of Kirby Smith In other States there was a similar carnival. 
Property, person, life, were all in jeopardy. Acts were done " to make a holi- 
day in hell." At New Orleans there was a fearful massacre, which, considering 
the age and the place, was worse than that of St. Bartholomew, which darkens 
a century of France, or that of Glencoe, which has printed an ineffaceable stain 
upon one of the greatest reigns of English history. All this is directly traced 
to Andrew Johnson. The words of bitterness uttered at another time are justi- 
fied, while Fire, Famine, and Slaughter shriek forth — 

He let me loose, and cried Halloo I 
To him alone the praise is due. 

ACCUMULATION OF IMPEACHABLE OFFENCES. 

This is nothing but the outline, derived from historic sources which the Saiate 
on this occasion is bound to recognize. Other acts fall within the picture. The 
officers he had appointed in defiance of law were paid also in the same defiance. 
Millions of property were turned over without consideration to railroad com- 
panies, whose special recommendation was their participation in the rebellion. 
The Freedman's Bureau, that sacred charity of the Republic, was despoiled of its 
possessions for the sake of rebels, to whom their forfeited estates were given 
back after they had been vested by law in the United Stares. The proceeds of 
captured and abandoned property, lodged under the law in the national treasury, 
were ravished from their place of deposit and sacrificed. Rebels were allowed 
to fill the ante-chambers of the Executive Mansion and to enter into his counsels. 
The pardoning power was prostituted, and pardons were issued in lots to suit 
rebels, thus grossly abusing that trust whose discreet exercise is so essential to 
the administration of justice. The powers of the Senate over appointments 
were trifled with and disregarded by reappointing persons who had been already 
rejected, and by refusing to communicate the names of others appointed by him 
during the recess. The veto power conferred by the Constitution as a remedy 
for ill-considered legislation, was turned by him into a weapon of ofi'ence against 
Congress and into an instrument to beat down the just opposition which his 
usurpation had aroused. The power of removal, which patriot Presidents had 
exercised so sparingly, was seized as an engine of tyranny and openly employed 
to maintain his wicked purposes by the sacrifice of good citizens who would not 
consent to be his tools. Incompetent and dishonest creatures, whose only recom- 
mendation was that they echoed his voice, were appointed to office, especially in 
the collection of the internal revenue, through whom a new organization, known 
as the "Whisky Ring," has been able to prevail over the government and to 
rob the treasury of millions at the cost of tax-paying citizens, whose burdens 



15 

are thus increased. Laws enacted by Congress for the benefit of tlie colored 
race, including that great statute for the establishment of the Freedmen's Bureau, 
and that other great statute for the establishment of Civil Rights, were first 
attacked by his veto, and, when finally passed by the requisite majority over his 
veto, were treated by him as little better than dead letters, while he boldly attempted 
to prevent the adoption of a constitutional amendment, by which the right of citi- 
zens and the national debt were placed under the guarantee of irrepealable law. 
During these successive assumptions, usurpations, and tyrannies, utterly with- 
out precedent in our history, this deeply guilty man ventured upon public speeches, 
each an ofience to good morals, where, lost to all shame, he appealed in coarse 
words to the coarse passions of the coarsest people, scattering firebrands of sedi- 
tion, inflaming anew the rebel spirit, insulting good citizens, and, with regard to 
ofiice-holders, announcing in his own characteristic phrase that he would " kick 
them out" — the whole succession of speeches being from their brutalities and 
indecencies in the nature of a " criminal exposure of his person," indictable at 
common law, for which no judgment can be too severe. But even this revolting 
transgression is aggravated, when it is considered that through these utterances 
the cause of justice was imperiled and the accursed demon of civil feud was 
lashed again into vengeful fury. All these things from beginning to end are 
plain facts, already recorded in history and known to all. And it is further 
recorded in history and known to all, that, through these enormities, any one of 
which is enough for condemnation, while all together present an aggregation of 
crime, untold calamities have been brought upon our country ; disturbing busi- 
ness and finance ; diminishing the national revenues ; postponing specie pay- 
ments ; dishonoring the Declaration of Independence in its grandest truths ; 
arresting the restoration of the rebel States ; reviving the dying rebellion, and 
instead of that peace and reconciliation so much longed for, sowing strife and 
wrong, whose natural fruit is violence aud blood. 

OPEN DEFIANCK OF COXGRESS. 

For all these, or any one of them, Andrew Johnson should have been 
impeached and expelled from office. The case required a statement only ; not 
an argument. Unhappily this was not done. As a petty substitute for the 
judgment which should have been pronounced, and as a bridle on presidential 
tyrfinny in " kicking out of office," Congress enacted a law known as the tenure- 
of-office act, passed March 2, 18G7, over his veto by the vote of two-thirds of 
both houses. And in order to prepare the way for impeachment, by removing 
certain scruples of technicality, its violation was expressly declared to be a high 
misdemeanor. 

The President began at once to chafe under its restraint. Recognizing the 
act and following its terms, he first suspended Mr. Stanton from office, 
and then, on his restoration by the Senate, made an attempt to win General 
Grant into a surrender of the department, so as to oust Mr. Stanton and 
to render the restoration by the Senate ineffectual. Meanwhile Sheridan in 
Louisiana, Pope in Alabama, and Sickles in South Carolina, who, as military 
commanders, were carrying into the pacification of these States all the energies 
which had been so brilliantly displayed in the war, were pursued by the same 
vindictive spirit. They were removed by the President, and rebellion through- 
out that whole region clapped its hands. This was done in the exercise of his 
power as Commander-in-chief. At last, in his unappeased rage, he openly 
violated. the tenure-of-office act, so as to bringhimself under its judgment, by the 
defiant attempt to remove Mr. Stanton from the War Department, without the 
consent of the Senate, and the appointment of Lorenzo Thomas, Adjutant General 
of the United States, as Secretary of War ad interim. 



16 



I.MPEACHMB.NT AT LAST. 

The Grand Inquest of the nation, Avhich" had slept on so many enormities, was 
awakened by this open defiance. The gauntlet was flung into its very chamber, 
and there it lay on the floor. The President, who had already claimed every- 
thing for the Executive with impunity, now rushed into conflict with Congress 
on the very ground selected in advance by the latter. The field was narrow, 
but sufiicieut. There was but one thing for the House of Representatives to 
do. Andrew Johnson must be impeached, or the tenure-of-office act would 
become a dead letter, while his tyranny would receive a letter of license, and 
impeachment as a remedy for wrong-doitig v/ould be blotted from the C<nisti- 
tution. 

Accordingly it was resolved that the offender, whose crimes had so long 
escaped judgment, should be impeached. Once entered upon this work, the 
House of Representatives, after setting forth the removal of Mr. Stantori and 
the appointment of General Thomas in violation of the law and Constitution, 
proceeded further to charge him in diffei*ent forms with conspiracy wrongfully 
to get possession of the War Department ; also with an attempt to corrupt 
General Emory and induce him to violate an act of Congress ; also with scan- 
dalous speeches, such as no President could be justified in making; concluding 
with a general article setting forth attempts on his part to prevent the execution 
of certain acts of Congress. 

Such is a simple narrative, which brings us to the articles of impeachment. 
Nothing that 1 have said thus far is superfluous ; for it shows the origin of this 
proceeding, and illustrates its moving cause. The articles themselves are 
narrow, if not technical. But they are filled and broadened by the transgres- 
sions of the past, all of which enter into the present offences. The whole is an 
unbi'oken series with a common life. As well separate the Siamese twins as 
separate the offences now charged from that succession of antecedent crimes 
with which they are linked, any one of which is enough for judgment. The 
present springs from the past and can be truly seen only in its light, which, in 
this case, is nothing less than "darkness visible." 

ARTICLES OF IMPEACHMENT. 

In entering upon the discussion of the articles of impeachment, I confess my 
regret that so great a cause, on which so much depends, should be presented on 
such narrow ground, althoifgh I cannot doubt that the whole past must be taken 
into consideration in determining the character of the acts alleged. If there has 
been a violation of the Constitution aVid laws, t!ie apologists of the President 
then insist that all vv'as done with good intentions. In reply to this it is enough 
if we point to the past, which thus becomes a part of the case. But of this 
hereafter. It is unnecessary for me to take time in setting forth the articles. 
The abstract already presented is enough. They will naturally come under 
review before the close of the inquiry. 

Of the transactions embraced by the articles, the removal of Mr. Stanton has 
uncjuestionably attracted the most attention, although I cannot doubt that the 
scandalous harangues are as justly worthy of condemnation. But the former 
has been made the pivot of this impeachment ; so much so that the whole case 
seems to revolve on this transaction. I'herefore I shall not err, if, following 
the articles, I put this foremost in the present inquiry. 

This transaction may be brought to the touchstone of the Constitution, and 
also of the tenure-of-office act. But since the allegation of a violation of this 
act has been so conspicuous, and this act may be regarded as a congressional 
interpretation of the power of removals under the Constitution, I begin with 
the consideration of the questions arising under it. 



17 



T F, .\ U R R - O F - (1 F F I C K A C T . 

The general object of the tenure-of-office act was to protect civil officers from 
removal without the advice and consent of the Senate ; and it was made in 
express terms applicable to " every person holding any civil office to which he 
has been appointed by and with the advice and consent of the Senate." To 
this provision, so broad in il.s character, was appended a proviso as follows : 

Provided, That the Secretaries of State, of the Tieasury, of War, of the Navy, and of the 
Interior, the Postmaster Generul, and the Attorney General shall hold their offices respectively 
for and during the term of the President by wliom they may have been appointed and for 
one month thereafter, subject to removal by and with tlie advice and consent of the Senate. 

As this general protection from removal without the advice and consent of the 
Senate might be productive of embarrassment during the recess of the Senate, 
it was further provided, in a second section, that during such recess any person 
may be suspended from office by the President on reasons assigned, which it is 
made his duty to report to the Senate within twenty days after its next meet- 
ing, and if the Senate concurs, then the President may remove the officer 
and appoint a successor ; but if the Senate does not concur, then the suspended 
officer shall forthwith resume his functions. 

On this statute two questions arise : first as to its constitutionality, and 
secondly as to its application to Mr. Stanton, so as to protect him from removal 
without the advice and consent of the Senate. It is impossible not to confess 
in advance that both have been already practically settled. The statute was 
passed over the veto of the President by a vote of two-thirds, who thus solemnly 
united in declaring its constitutionality. Then came the suspension of Mr. 
Stanton, and his restoration to office by a triumphant vote of tlje Senate, being 
no less than 35 to 6, thus establishing not only the constitutionality of the 
statute, but also its protecting application to Mr. Stanton. And then came the 
resolution of the Senate, adopted after protracted debate on the 21st February, 
by a vote of 27 to 6, declaring, that, under the Constitution and laws of the 
United States, the President has no power to remove the Secretary of War and 
to designate any other officer to perform the duties of that office ad interim ; 
thus for the third time affirming the constitutionality of the statute, and for the 
second time its protecting application to Mr. Stanton. There is no instance in 
our history where there has been such a succession of votes, with such large 
majorities, declaiing the conclusions of the Senate and fixing them beyond 
recall. "Thrice is he armed who hath his quarrel just ;" but the tenure-of- 
officc act is armed thrice by the votes of the Senate. The apologists of the 
President seem to say of these solemn votes, " Thrice the brinded cat hath 
mewed ;" but such a three-fold record of the Senate cannot be treated with levity. 

The question of the constitutionality of this stalute complicates itself M'ith 
the power of removal under the Constitution ; bat I shall not consider the lat- 
ter question at this stage It will naturally preseni itself when we consider 
the power of removal under the Constitution whicli has been claimed by the 
President. For the present I assume the constitutionality of the statute. 

ITS APPLICATIOX TO MR. STANTON. 

I come at once to the question of the application ol' the statute to Mr. Stanton, 
so as to protect him against removal without the consent of the Senate. And 
here I doubt if any question would have arisen but for the hasty words of the 
senator from Ohio, [Mr. Sherman,] so often quoted in this proceeding. 

Unquestionably the senator from Ohio, when the report of the conference 

committee of the two houses was under discussion, stated that the statute did 

not protect Mr. Stanton in his office ; but this was the individual opinion of this 

senator, and nothing more. On hearing it I cried from my seat, " The senator 

2 Sumner 



.18 

must speak for himgelf ;" for 1 held the opposite opinion. It Avas clear to my 
mind that the statute was intended to protect Mr. Stanton, and that it did pro- 
tect him. The senator from Oregon, [^[r. Williams,] who was the chairman of 
the conference committee and conducted its deliberations, informs us that there 
was no suggestion in the committee that the statute did not protect all of the 
President's cabinet, including, of course, Mr. Stanton. The debates in the 
House of Repiesentatives are the same v/ay. Without underraking to hold 
the scales in which to weigh any such conflicting opinions, I re?t nn the received 
rule of law that they cannot be taken into account in determiuiug the meaning 
of the statute. And here I quote the judgment of the Supreme Court of the 
United States, pronounced by Chief Justice Taney : 

In expounding' tliis law, the judgment of the court cannot in any degree he iiijlucnccd by the 
construction placed upon it by individual membtrs of Congress in the debate tchich took place 
on its passage, nor by the motives or reasons assigned by them for supporting or opposing 
amendments that were offered. The law that passed is the will of the majority ot both 
houses, and the only mode in which that will is spoken is in the act itself; and we must 
gather their intention from the language there used, comparing it, when any ambiguity 
exists, with the laws upon the same sabject, and looking, if necessary, to the public history 
oj the times in irhich it teas passed. (Aldridge %"s. U'tlliants, 3 Howard's Rep., 2A.) 

It is obvious to all acquainted with a legislative body that the rule thus 
authoritatively declared is the only one that could be safely applied. The Sen- 
ate in construing the present statute must follow- this rule. Therefore, I repair 
to the statute, stopping for a moment to glance at the public history of the 
times, in order to understand its object. 

Already, we have seen how the President, in carrying forward his usurpation 
in the interest of the rebellion, has trifled with the Senate in regard to appoint- 
ments, and abused the traditional power of removal, openly threatening good 
citizens in oilGce that he would " kick them out," and filling all vacancies, from 
high to low, with creatures whose first promise was to sustain his barbarous 
policy. I do not stop to portray the extent of this outrage, constituting an 
impeachable offence, according to the declared opinion of Mr. Madison, one of 
the strongest advocates of the presidential power of removal. Congress, instead 
of adopting the remedy, suggested by this father of the Constitution, and expel- 
ling the President by process of impeachment, attempted to wrest from him the 
power he was abusing. For this purpose the tenure-of-oflice act v/as passed. 
It was deemed advisable to include the cabinet officers Avithin its protection ; 
but, considering the intimate relations between them and the President, a pro- 
viso was appended securing to the latter the right of choosing them in the first 
instance. Its object was, v.-here the President finds himself, on accession to 
office, confronted by a hostile Senate to seciire to him this right of choice, with- 
out obliging him to keep the cabinet of his predecessor; and accordingly it 
says to him, " Choose your own cabinet, but expect to abide by your choice, 
unless you can obtain the consent of the Senate to a change." 

Any other conclusion is flat absurdity. It begins by misconstruing the oper- 
ative words of the proviso, that the cabinet officers " shall hold their offices 
respectively for and during the term of the President by wliom they are 
appointed." On its face there is no ambiguity here. It is only by going out- 
side that any can be found, and this disappears on a brief inquiry. At the date 
of the statute Andrew Johnson had been in oflice two 3'ears. Some of his 
cabinet Avere originally appointed by President Lincoln ; others had been for- 
mally appointed by himself. But all were tlicre cquoUy hy his ajjproval and 
consent. One may do an act himself, or make it his own by ratifying it Avheu 
done by another. In law it is equally his act. AndreAv Johnson did not orig- 
inally appoint Mr. Stanton, Mr. SeAvard, or Mr. Welles, but he adopted their 
appointments, so that at the passage of the statute they stood on the same foot- 
ing as if originally appointed by him. Practically and in the sense of the 
statute, they ivcre appointed hy him. They were a cabinet of his own choice, 



19 

just as much as the cabiuet of his successor, dulj' appointed, will be of his own 
choice. If the statute compels the latter, as it clearly does, to abide by his 
choice, it is unreasonable to suppose that it is not equally obligatory on Andrew 
Johnson. Otherwise we find a special immunity for that President whose 
misconduct rendered it necessaiy, and Congress is exhibited as legislating for 
some future mikuov,ai President, and not for Andrew Johnson, already too well 
known. 

Even the presidential apologists do not question that the members of the 
cabinet commissioned by Andrew Johnson are protected by the statute. How 
grossly unreasonable to suppose that Congress intended to make such a dis- 
tinction among his cabinet as to protect those whose support of his usurpation 
had gained them seats which they enjoyed, while it exposed to his caprice a 
great citizen, whose faithful services during the war had won the gratitude of 
his country, whose continuance in office was regarded as an assurance of public 
safety, and whose attempted removal has been felt as a national calamity. 
Clearly, then, it was the intention of the statute to protect the whole cabinet, 
whether originally appointed by Andrew Johnson or originally appointed by 
his predecessor and continued by him. 

I have no hesitation in saying that no other conclusion is possible without 
doing violence to the statute. I cannot forget that, while Ave are permitted "to 
open the law on doubts," we are solemnly v/arned *' not to open doubts on the 
law." It is Lord Bacon who gives us this rule, whose obvious meaning is, that 
where doubts do not exist they should not be invented. It is only by this for- 
bidden course that any question can be raised. If we look at the statute in its 
simplicity, its twofold object is apparent: first, to prohibit removals; and sec- 
ondly, to limit certain terms of service. The iirohibition to remove plainly 
applies to all. The limitation oj" service applies only to members of the cabi- 
net. I agree with the excellent senator from Iowa [Mr. Harlan] that this, 
analysis removes all ambiguity. The pretension that any one of the cabinet 
was left to the unchecked power of the President is irreconcilable with the con- 
cluding woi-ds of the proviso, which declares that they shall " be subject to 
removal by and with the advice and consent of the Senate;" thus expressly 
excluding the prerogative of the President. 

Let us push this inquiry still further by looking more particularly at the 
statute, reduced to a skeleton, so that we may see its bones. It is as follows : 

(L) Every 'person holding any civil office, by and with the advice and con- 
sent of the Senate, shall be entitled to hold such office until a successor is 
appointed. 

(2.) If members of the cabinet, then during the term of the President by 
whom they may have been appointed and one month thereafter, unless sooner 
removed by consent of the Senate. 

Mr. Stanton obviously falls within the general class, " every person holding 
any civil office;" and he is entitled to the full benefit of the provision for their 
benefit. 

As obviously he falls within the sub-class, " members of the cabinet." 

In this latt'n- class his rights are equally clear. It is in the discussions under 
this head that the ingenuity of lawyers has found the amplest play, mainly turn- 
ing upon what is meant by " tf^'rm" in the statute. I glance for a moment at 
some of these theories. 

(1.) One pretension is that the " term," having expired with the life of Presi- 
dent Lincoln, Mr. Stanton is retroactively legislated out of office on the 15th 
May, 18(35. As this is a penal statute, this construction makes it ex post facto, 
and therefore unconstitutional. It also makes Congress enact tliis absurdity 
that Mr. Stanton had for two years been holding office illegally, whereas he had 
been holding under the clearest legal title, v^hicli could no more be altered by 



20 

legislation than black could be made white. A construction which makes the 
statute at once unconstitutional and absurd must be rejected, 

(2.) The quibble that would exclude Mr. Stanton from the protection of the 
statute, because he was appointed during the lirst "term" of President Lin- 
'Coln, and the statute does not speak of " terms," is hardly worthy of notice. 
It leads to the same absurd results as follow from the first supposition, enhanced 
by increasing the retroactive effect. 

(3.) Assuming that the statute does not termiuate Mr. Stanton's right a month 
after President Line: In's death, it is insisted that it must take effect at the 
earliest possible moment, and therefore on its passage. From this it follows 
that Mr. Stanton has been illegally in oiUce since the 2d March, 1867, and that 
both he and the President have been guilty of a violation of law, the former in 
exercising the duties of an ofiice to which he had no right, and the latter for 
appointing him, or continuing him, in office, without the consent of the Senate, 
in violation of the Constitution and the statute in question. Here is another 
absurdity to be rejected. 

(4.) Assuming, as it is easy to Jo, that it is President Lincoln's " term," we 
have the better theory, that it did not expire with his life, but continues until 
the 4th of ]\Iarch, 1S69, in which event Mr. Stanton is clearly entitled to hold 
until a month thereafter. This construction is entirely reasonable and in har- 
mony Avith the Constitution and legislation under it. I confess that it is one to 
which I have often inclined. 

This brings me back to the construction with which I began, and I find 
Andrew Johnson is the President who appointed Mr. Stanton. To make this 
simple, it is only necessary to read " chosen " for " appointed " in the statute, 
or, if you please, consider the continuance of Mr. Stanton in office, with the 
concurrence of the President, as a j)ractical appointment or equivalent thereto. 
Clearly Mr. Stanton was in office, when the statute passed, from the " choice " of 
the President. Otherwise he would have been removed. His continuance was 
like another commission. This carries out the intention of the framers of the 
statute, violates no sound canon of construction, and is entirely reasonable in 
every respect. Or, if preferred, Ave may consider the "term" to be that of 
President Lincoln, and then Mr. Stanton would be protected in office until one 
month after the 4th of March next. But whether th.e " term " be of Andrew 
Johnson or of President Lincoln, he is equally- protected. 

Great efforts have been made to show that Mr. Stanton does not come within 
"the special protection of the proviso, without considering the irresistible conse- 
quence that he is then within the general protection of the statute, being " a 
person holding a civil office." Turn him out of the proviso and he falls into 
the statute, unless you are as imaginative as one of the apologists, who placed 
him in a sort of intermediate limbo, like a lost spirit floating in space, as in one 
of Flaxman's Illustrations of Dante. But the imagination of this conception can- 
not make us insensible to its surpassing absurdity. It is utterly unreasonable, 
and every construction must be rtyecterl which cannot stand the touchstone of 
common sense. 

THE SUSPENSION OF MR. STA.\TO.\ RECOGMZf'.D HIM AS PROTECTED BY THE 

STATUTE. 

Here I might close this part of the case ; but there is still another illustration. 
In suspending Mr. Stanton from office, as long ago as August, the President 
himself recognized that he was protected by the statute. The facts are familiar. 
The President, in formal words, undertook to say that the suspension was by 
virtue of the Constitution ; but this was a dishonest pretext in harmony with so 
much in his career. Whatever he may say, his acts speak louder than his 
words. In sending notice of the suspension to the Secretary of the Treasury, 
and then again in sending a message to the Senate assigning his reasons for the 



21 

suspension, botli being according to the requirements of th*e statute, he testified 
that, in his judgment at that time, Mr. Stanton came within its protection. If 
not, why thus elaborately comply with its requirements ? Why the notice to 
the Secretary of the Treasury '? Why the reasons to the Senate ? All this was 
novel and without example. Why ivrite to General Grant of " being sustained " 
by the Senate ? The approval or disapproval of the Senate could make no dif- 
ference in the exercise of the power which he now sets up. The approval could 
not confirm the suspension ; the disapproval could not restore the suspended 
Secretary of War. In fine, why suspend at all ? Why exercise the power of 
suspension when the President sets up the power of removal 1 If Mr. Stanton 
was unfit for office and a thorn in his side, why not remove him at once ? Why 
resort to this long and untried experiment merely to remove at last ? There is 
but one answer. Beyond all question the President thought Mr, Stanton pro- 
tected by the statute, and sought to remove him according to its provisions, 
beginning, therefore, with his suspension. Failing in this, he undertook to- 
remove him in contravention of the statute, relying in justification on his preten- 
sion to judge of its constitutionality, or the pusillanimity of Congress, or some- 
thing else "to tarn up," which should render justification unnecessary. 

Clearly the suspension was made under the tenure-of-office act and can be 
justified in no other way. From this conclusion the following dilemma results : 
If Mr. StantOA was within the statute, by what right vras he removed ? If 
he was not, by what right was he suspended 1 The President may choose his 
horn. Either will be sufficient to convict. 

I should not proceed further under this head but for the new device, which 
makes its appearance under the auspices of the senator from Maine, [Mr. Fes- 
senden,] who tells us that " whether Mr. Stanton came under the first section of 
the statute or not, the President had a clear right to suspend him under the 
second." Thus, a statute, intended as a bridle on the President, gives to the 
President the power to suspend Mr. Stanton, but fiiils to give to Mr. Stanton 
any protection against the President. This statement would seem to be enough. 
The invention of the senator is not less fallacious than the pretext of the Presi- 
dent. It is a device well calculated to help the President and to hurt Mr. Stan- 
ton, with those who regard devices more than the reason of the statute and its 
spirit. 

Study the statute in its reason and its spirit, and you cannot fail to see that 
the second section was intended merely as a pendant to the first, and was meant 
to apply to the cases included in the first, and none other. It was a sort of 
safety-valve or contrivance to guard against the possible evils from bad men , 
who could not be removed during the recess of the Senate. There was no rea- 
son to suspend a person who could be removed. It is absurd to suppose that a 
President would resort to a dilatory and roundabout suspension, when the short 
cut of removal was open to him. Construing the statute by this plain reason, 
its second section must have precisely the same sphere of operation as the first. 
By the letter, Mr. Stanton falls Avithin both ; by the intention, it is the same. 
It is only by applying to the first section his own idea of the intention, and by 
availing himself of the letter of the second, that the senator is able to limit the 
one and to enlarge the other, so as to exclude Mr. Stanton from the protection of 
the statute, and to include him in the part allowing suspensions. Applying 
either letter or spirit consistently, the case is plain. 

I turn for the present from the tenure-of-office act, insisting that Mr. Stanton 
is within its protection, and being so, that his removal was, under the circum- 
stances, a high misdemeanor, aggravated by its defiant purpose and the long 
series of transgressions which preceded it, all showing a criminal intent. The 
apologies of the President will be considered hereafter. 



22 

THE SUBSTITUTION OF THOMAS AD INTERIM 

The case of Mr. Stanton has two branches : first, his removal, and, secondly, 
the substitution of General Thomas as Secretary of War ad interim. As the 
first was contrary to positive statute, so also was the latter without support in 
the acts of Congress. For the present I content myself with this latter propo- 
sition, without opening the question of the powers of the President under the 
Constitution. 

The offender rests his case on the act of Congress of February 13, 1795, (1 
Statutes at Large, 415,) which authorizes the President, " in case of vacancy in 
the office of Secretary of War, Avhereby he cannot perform the duties of said 
office," to appoint " any person" until a successor be appointed or such vacancy 
be filled ; and the supply of the vacancy is limited to six months. Under this 
early statute the President defends himself by insisting that there was a 
" vacancy," when, in fact, there was none. All this is in that unfailing spirit 
of prerogative which is his guide. Here is an assumption of pov/er. In point 
of fact, Mr. Stanton was at his office quietly discharging its duries when the 
President assumed that there was a " vacancy," and forthwith sent the valiant 
Adjutant General to enter upon possession. The assumption and the commis- 
sion were on a par. There is nothing in any law of the land to sanction either. 
Each testifies against the offender. 

The hardihood of this proceeding becomes more apparent, when it is under- 
stood that this very statute of 1795, on which the offender relies, Avas repealed 
by the statute of February 20, 1863, passed in our own day, and freshly remem- 
bered by many of us. The latter statute, by necessary implication, obliterated 
the former. Such is the obvious intention, and I do not hesitate to say that 
any other construction leads into those absurdities which constitute the staple 
of the presidential apologists. The object of Congress was to provide a substi- 
tute for previous statutes, restricting at once the number of vacancies which 
might be filled and the persons who might fill them. And this was done. 

As by the Constitution all appointments must receive the consent of the 
Senate, therefore any legislation in derogation thereof must be construed strictly ; 
but the President insists that it shall be extended even in face of the constitu- 
tional requirement. To such pretensions is he driven. The exception recog- 
nized by the Constitution is only where a vacancy occurs during the recess of 
the Senate, when the President is authorized to appoint until he can obtain the 
consent of the Senate and no longer. It is obvious, however, that cases may 
arise where a sudden accident vacates the office or where the incumbent is tem- 
porarily disabled. Here was the occasion for an ad interim appointment, and 
the repealing statute embodying the whole law of the subject, was intended to 
provide for such cases ; securing to the President time to select a successor, and 
also power to provide for a temporary disability. Such is the underlying prin- 
ciple of this statute, which it is for us to apply on the present occasion. The 
expiration of a commission, which ordinary care can foresee, is not one of these 
sudden emergencies for which provision must be made ; and, assuming that 
vacancies by removal were contemplated, which must be denied, it is plain that 
the delay required for the examination of the case would give time to select a 
successor, while a removal without cause would never be made until a successor 
was ready. 

Look now at the actual facts and you will see how little they come within the 
reason of an ad interim appointment. Evidently the President had resolved to 
remove Mr. Stanton last summer. Months passed, and he did not consummate 
his purpose till February. All the intervening time was his to select a succes- 
sor, being a period longer than the longest fixed for the duration of an ad interim 
appointment by the very statutes under which he professed to act. In conver- 
sation with General Sherman, a month before the removal, he showed that he 
"was then looking for a successor ad. interim. Why not s. f-crmajient successor? 



23 

It took him only a day to find Mr. Ewiug. If, as there is reason to suppose, 
Mr. Ewin^ was ah-eady selected, when General Thomas was pushed forward, 
why ajipoint General Thomas at all ? Why not, in tlie usual way, transmit Mr. 
Ewing's name as the successor? For the excellent reason, that the offender 
knew the Senate would not confirm him, and that, therefore, xMr. Stanton would 
remain in office ; whereas through an ad interim appointment he might obtain 
possession of the War Department, which was his end and aim. The ad interim 
appointment of General Thomas was, therefore, an attempt to obtain possession 
of an office without the consent of the Senate, precisely hccause the offender 
kn€2v that he could not obtain that consent. And all this was under the pretext 
of an act of Congress, which, alike in letter and spirit, was inapplicable to the 
case. 

Thus does it appear, that, wliile Mr. Stanton was removed in violation of the 
tenure-of-office act. General Thomas was appointed Secretary of War ad interim 
in equal derogation of the acts of Congress regulating the subject. 

KE.MOVAI, AND SUBSTITUT.'O.X AD INTERIM A VIOLATION OF THE CONSTITUTION. 

It remains to consider if the removal and substitution were not each in viola- 
tion of the Constitution. The case is new, for never until now could it arise. 
Assuming that the tenure-of-office act does not protect Mr. Stanton, who is thus 
left afloat in the limbo between the body of the act and the proviso, then the 
President is remitted to his prerogative under the Constitution, and he must be 
judged accordingly, independent of statute. Finding the power of removal 
there, he may be justified ; but not finding it there, he must bear the consequences. 
And here the tenure- of- offi,ce act furnishes a living and practical construction oj 
the Constitution from which there is no appeal. 

From the Constitution it appears that the power of appointment is vested in 
the President and Senate conjointly, and that nothing is said of the power of 
removal, except in case of impeachment, when it is made by the Senate. 
Therefore, the power of removal is not express, but implied only, and must 
exist, if at all, as a necessary consequence of the power to appoint. In whom 
must it exist ? It is a familiar rule that the power which makes can unmake. 
Unless this rule be rejected, the power of ren^.oval must exist in the President and 
Senate conjointly ; nor is there anything unreasonable in this conclusion, l^emoval 
can always be effected during the session of the Senate by the nomination and con- 
firmation of a successor, while provision can be made for the recess by an act of 
Congress. This conclusion would be irresistible, Avere the Senate always in ses- 
sion, but since it is not, and since cases may arise during the recess requiring 
the immediate exercise of this power of removal, it has been argued that at least 
during the recess it must be in the President alone. From this position there 
has been a jump to the next, and it has been insisted that since, for the sake of 
public convenience, the power of removal exists in the President, he is at lib- 
erty to exercise it, either during the recess or the session itself. Here is an 
obvious extension of the conclusion which the premises do not warrant. The 
reason failing the conclusion must fiiil. Cessante ratione cessat ctiam ipsa lex. 
Especially must this be the case under the Constitution. A power founded on 
implied necessity must fail when that necessity does not exist. The implication 
cannot be carried beyond the reason. Therefore, the power of removal during 
the recess, doubtful at best unless sanctioned by act of Congress, cannot be 
extended to justify the exercise of that power while the Senate is in session, 
ready to act conjointly with the President. 

Against this natural conclusion we have the assumption that a contrary con- 
struction of the Constitution was established after debate in 17S9. I avoid 
all details with regard to this debate which has been considered and cited so often. 
I content myself by asking if at best it was anything but a congressional construc- 
tion of the Constitution, and, as such, subject to be set aside by another voice from 



24 

tlie same quarter. It; was, moreover, a congressional construction adopted during 
the administration ol' Washington, whose personal character must have influ- 
enced opinion largely ; and it prevailed in the House of Representatives only 
after earnest debate, by a bare majority, and in the Senate only by the casting 
vote of the Vice-President, John Adams, who, from position as well as principle, 
was not inclined to shear the President of any prerogative. Once adopted, and 
no strong necessity for a change occurring, it was allowed to go unaltered, bnt 
not unquestioned. Jurists like Kent and Story, statesmen like Webster, Clay, 
Calhoun, and Benton, recorded themselves adversely, and it was once reversed 
by the vote of the Senate. This was in 1835, when a bill passed the Senate, 
reported by Mr. Calhoun and sustained by the ablest statesmen of the time, 
practically denying the power of the President. The tenure-of-office act was 
heralded in 1 863 by a statute making the Comptroller of the Currency removable 
" by and with the advice and consent of the Senate," thus, in this individual 
case, asserting for the Senate a check on the President; and then in 1866, by 
a more important measure, being the provision in the army appropriation act, 
that " no military or naval officer shall be dismissed except upan the sentence 
of a court-martial;" thus putting another check on the President. Finally, this 
congressional construction, born of a casting vote, and questioned ever since, 
has been overruled by another congressional construction, which has been twice 
adopted in both houses, first by large majorities on the original passage of the 
tenure of-o£dce act, and then by a vote of two-thirds on the final passage of the 
same act over the veto of the President ; and then again adopted by a vote of 
more than two-thirds of the Senate, when the latter condemned the removal of 
Mr. Stanton ; and all this in the light of experience, after ample debate, and 
with all the consequences before them. Such a congressional construction must 
have a controlling influence, and the fact that it reversed the practice of eighty 
years and overcame the disposition tO'Stand on the ancient ways, would seem 
to increase rather than diminish its weight. 

Now, mark the consequences. Originally, in 1789, there was a congressional 
construction, which, in effect, made the Constitution read : 

The President shall have the power of removal. 
For the next eighty years all removals were made under this construction. 
The tenure-of-office act was a new congressional construction, overruling the 
first and entitled to equal if not supt-rior weight. By virtue of this congres- 
sional construction, the Constitution now reads : 

The President shall not have the power of removal. 
It follows, then, that in removing ^Mr, Stanton the President violated the Con- 
stitution as now construed. 

The dilemma is this : If the President can remove Mr. Stanton during the 
session of the Senate, without any power by statute, it is only by virtue of a 
prerogative vested in him by the Constitution, which must necessarily override 
the tenure-of-office act, as an unconstitutional effort to abridge it. If, on the 
other hand, this act is constitutional, the prerogative of removal is not in the 
President, and he violated the Constitution when he assumed to exercise it. 

The tenure-of-office act cannot be treated otherwise than constitutional. Cer- 
tainly not in the Senate, where some among the apologists of the Pi-esident 
voted for it. Therefore the prerogative of removal is not in the President. 
The long practice which grew up under a mere reading of the Constitution, 
has been declared erroneous. To this extent the Constitution has been amended, 
and it is as absurd to plead the practice under the first reading in order to jus- 
tify an offence under the second, as to plead the existence of slavery before the 
constitutional amendment in order to justify this monstrosity now. 

Thus must we conclude that the offender has not only violated the tenure-of- 
office act, but also the Constitution ; that, even assuming that Mr. Stanton is 
not protected by the statute, the case is not ended ; that this statute, if con- 



25 

strued so as to exclude him, cannot be rejected as a congressional construc- 
tion of the Constitution; and that, under this congressional construction, which 
in value is second only to a constitutional amendment, the prerogative of removal 
without the consent of the Senate does not belong to the President. Of course 
the power of suspension under the Constitution, which is only an incident of the 
larger pretension, must fall also. Therefore, in the defiant removal of Mr. 
Stanton, and also in the pretended suspension under the Constitution with v/liich 
the transaction began, the President violated the Constitution, and was guilty of 
an impeachable offence. i 

And so, also, we must conclude that, in the substitution of Lorenzo Thomas 
as Secretary of War ad interim, the offender violated not only the acts of Con- 
gress for the supply of vacancies, but also the Constitution. Knowing that he 
could not obtain possession of the office with the consent of the Senate, he 
sought to accomplish this purpo.'?e without that consent. Thus, undercolor of 
a statute, he practically set the Constitution at defiance. Mark here his incon- 
sistency. He violates the tenure-of-office act, alleging that it is against the 
Constitution, whose champion he professes to be, and then takes advantage of 
the acts of Congress for the supply of vacancies to set aside the Constitution 
in one of its most important requirements ; for all which he is justly charged 
with an impeachable offence. 

All this seems clear. Any other conclusion gives to the President the power 
under the Constitution to vacate all national offices and leaves the republic the 
w retched victim of tyranny, with a ruler who is not even a constitutional mon- 
arch, but a king above all laws. It was solemnly alleged in the articles against 
Charles I of England, that " being admitted king of England, and therein 
trusted with a limited power to govern hy and according to the laws oj" the land 
and NOT OTHERWISE," he nevertheless undertook " to rule according tohisioill 
and to overthroAV the rights and liberties of the people." These very words 
might be adopted now to declare the crime of Andrew Johnson. 

THE APOLOGIES. 

Here I might close; but the offender has found apologists, who plead his 
cause at the bar and in the Senate, The apologies are a strange compound, 
enlarging rather than diminishing the offences proved. There is, first, the 
Apology of Good Intentions; next, the Apology of making a case for the 
Supreme Court, being the Moot Court Apology ; and, then, the Apology that the 
President may sit in judgment on the laws, and determine whether they shall 
be executed, which I call the Apology of Prerogative. Following these is a 
swarm of technicalities, devices, and quibbles, utterly unworthy of che Senate, 
and to be reprobated by all who love justice. 

THE APOLOGY OF GOOD I.NTENTIONS. 

I begin with the Apology of Good Intentions. In the light of all that has 
occurred, with the volume of history open before us, with the records of the 
Senate in our hands, and with the evidence at the bar not utterly forgotten, it 
is inconceivable that such an apology can ^e put forward. While making it 
the apologists should be veiled, so that the derisive smile on their faces may 
not be observed by the Senate, to whose simplicity it is addressed. It is hard 
to treat this apology; but it belongs to the case, and therefore I deal with it. 

Of course a mere technical violation of law, with no evil consequences and 
without any claim of title, is followed by nominal damages only. If a person 
steps on a field of grass belonging to another, without permission, he is a tres- 
passer, and the law furnishes a familiar proceeding against him; but if he has 
done this accidentally, and without any real damage, it would be hard to pursue 
him, unless the assertion of the title were thought important. But if this tres- 
passer is an old offender, wlio from the beginning has broken fences, ruined 



■ w 

trees, and trampled down the garden, and who now defiantly comes upon the 
field of grass, insisting upon absolute ownership, then it is vain to set up the 
apology that very little damage is done. The antecedent transgressions, end- 
ing in a claim of title, enter into the present trespass and make it a question 
whether the rightful owner or the trespasser shall hold possession. Here the 
rightful owner is the people of the United States, and the trespasser is Andrew 
Johnson. Therefore in the name of the people is he impeached. 

This simple illustration opens tlie whole case. Tiie mere technical violation, 
of a stfftute or of the Constitution, without antecedents and without consequents, 
would not justify an impeachment. All of us can recall such, even in the admin- 
istration of Abraham Lincoln, and I cannot doubt that, since this proceeding 
began, the Chief Justice violated the. Constitutio)! v,'hen he undertook to give a 
casting vote, not being a member of the Senate. But these were accidents, 
besides being innocuous. From a violatioi) of the Constitution or of a statute, 
the law ordinarily infers evil intent, and where such a case is submitted to judg- 
ment, it throws upon the violator the burden of exculpation. He must show 
that his conduct was innocent ; in other words, that it was without evil intent 
or claim of title. In the present cause we have a denial of evil intent, with a 
claim of title. 

The question of intent thus raised by this offender cannot be considered nar- 
rowly. This is a trial of impeaclnnent, and not a criminal case in a county court. 
It is a proceeding for expulsion from office on account of political o^ences, and 
not a suit at law. When the offender sets up good intentions, he challenges 
inquisition, according to the latitude of such a proceeding. The whole past is 
unrolled by himself, and he cannot prevent the Senate from seeing it. By a 
commanding rule of evidence it is all before us without any farther proof. You 
cannot shut it out; yon cannot refuse to look at it. And yet we have been 
seriously told that we must shut out from sight everything bat the technical 
tre.spass. It only remains that, imitating the ostrich, we should thrust our 
heads in the sand, and, not seeing danger, foolishly imagine it does not exist. 
This may do at Nisi Prius; it will not do in the Senate. 

To such extent has this ostrich pretension been carried, that vv^e have been 
solemnly admonished at the bar, and the paradox has found voice in the Senate, 
that we must judge the acts of Andrew Johnson "as if committed by George 
Washington." Here is the paradox in its length and breadth. I deny it. I 
scout it. On the contrary, I say that we must judge all these acts as if com- 
mitted by Andrew Johnson, and nobody else. In other words, we must see 
things as they are. As well insist that an act of guilt should be judged as the 
mistake of innocence As well argue that the stab of the assassin should be 
treated as the cut of the surgeon. 

To the Apology of Good Intentions, I oppose all that long unbroken series of 
transgressions, each with a voice to drown every pretext of innocence. I would 
not repeat v/hat I have already said, but, in the presence of this apology, it is 
ray duty to remind the Senate how the career of this offender is compounded of 
falsehood and usurpation ; how, beginning with promises to make treason odious, 
he soon installed it in authorit}'; how, from declared sympathy with Unionists, 
wliite and black, he changed to be their persecator ; how in him are continued 
the worst elements of slavery, an insensibility to right and a passion for power; 
how in this spirit he usurped great prerogatives which did not belong to him; 
how in the maintenance of this usurpation he stuck at nothing; how he violated 
law ; how he abused the pardoning power ; how he prostituted the appointing 
power; how he wielded the power of re:novaI to maintain his tyranny; how he 
sacrificed the Freedmen's Bureau and lifted up the Whiskey Ring ; how he 
patronized massacre and bloodshed, and gave a license to the Ku-Klux-Klan ; 
how, in madness, he entered into conflict with Congress, contesting its riglitful 
power over the reconstruction of the rebel States, and, Avhen Congress Avould 



27 

not succumb to bis usurpation, bow be tbwaited and villified it, expectorating 
foul-moutbed utterances, wbicli are a disgrace to bumau nature ; bow he so far 
triumphed in his wickedness that in nine States no Union man is safe and no 
murderer of a Union man can be punished ; and, lastly, for time fails, though 
not the long list of transgressions, how be conspired against the patriot Secretary 
of War, because be found in that adamantine character an obstacle to his revo- 
lutionary career. And now, in the face of this terrible and indisputable record, 
entering into and filling this impeachment, I bear a voice saying that we must 
judge the acts in question " as if committed by George Washington." The 
statement of this pretension is enbugh. I hand it over to the contempt it 
deserves. 

THE MOOT-COURT APOLOGY. 

Kindred to the Apology of G-ood Intentions, or, perhaps, a rib out of its side, 
is the Moot Court Apology, which pretends that the President, in removing Mr. 
Stanton, only wished to make a case for the Supreme Court, and thus submit to 
this tribunal the constitutionality of the tenure-of-office act. 

By this pretension the Supreme Court is converted into a moot-court to sit in 
judgment on acts of Congress, and the President becomes what, in the time of 
Charles II, Roger North said good lawyers must be, a " put case." Even 
assuming against the evidence that such was bis purpose, it is hard to treat it 
without reprobation. The Supreme Court is not the arbiter of acts of Congress. 
If tliis pretension ever found favor, it was from the partisans of slavery and 
State rights, who, assured of the sympathy of the court, sought in this way to 
complete an unjust triumph. The power claimed is tribunitial in character, being 
nothing less than a veto. Its nearest parallel in history is in the ancient Justitia 
of Arragon, which could set aside laws as unconstitutional. Our Constitution 
leaves no doubt as to the proper functions of the Supreme Court. It may bear 
and determine ''all cases in law and equifj' arising under the Constitution, the 
laws of the United States, and the treaties made under their authority ;" but 
this is all. Its business is to decide '' cases ;" not to sit in judgment on acts 
of Congress and issue its tribunitial veto. If a " case" arises where a statute 
is said to clash with the Constitution, it must be decided as any other case of 
conflict of laws. But nothing within the just powers of the court can touch an 
act of Congress, except incidentally, and then its judgment is binding only on 
the parties. The incidental reason assigned, as, for instance, that a statute is 
unconstitutional, does not bind anybody, not even the parties or the court itself. 
Of course, this incidental reason cannot bind Congress. 

On the evidence it is clear enough that the President bad no honest purpose 
to make a case for the Supreme Court. He m.ay have talked about it, but he 
was never in earnest. When asked by G-eneral Sherman " why the lawyers 
.could not make a case," he said in reply that " it was found impossible, or that 
a case could not be made up." And so at each stage we find him practically 
discarding the idea. He issues the order of removal. Mr. Stanton disobeys. 
Here Avas exactly bis opportunity. Instead of making the case by commencing 
the proper process, he tells General Thomas to '■ go on and take possession of 
the oflice;" and then, putting an end to this whole pretension of a case for the 
court, he proceeds to treat the latter in every respect, whether of law or fact, as 
Secretary, welcomes him to his cabinet, invites him to ])resent the business of 
his department, and, so far from taking advantage of the opportunity he had 
professed to desire, denies its existence. How could be inquire by what author- 
ity Mr. Stanton assumed to hold the office of Secretary of War, when be denied, 
in fact, that he was holding \t'( 

Look a little further and you cannot fail to see the reason of this indifference. 
The old writ of qyo ^oarranto was the only process by which a case could be 
made; and this could be issued only at the suit of the Attorney General. Had 
the President made an order of removal, the Secretary would have been com- 



28 

pelled to hold only by virtue of the law and the Constitution. In answer to 
the writ he woiald have pleaded this protection, and the court must have decided 
the validity of the plea. Meanwhile he would have remained in office. Had he 
left, the process would have failed, and there was no other process by which he 
could raise the ([uestion. The decision of the Supreme Court in Wallace vs. 
Anderson would prevent a resort to a quo ivarranto on his part, while the earlier 
case of Alarha-ij vs. Madison v/ould shut him out from a viandanms. The 
apologists have not suggested any other remedy. It is clear, therefore, that Mr. 
Stanton's possession of the office v/as a sine qua non to a case in the Supreme 
Court ; and that this could be only by quo warranto. The local attorney 
employed by the President testifies that a judgment in such a case could not be 
reached v/ithin a year. This was enough to make it impracticable; for, if com- 
menced, it would leave the hated Secretary at his post for the remainder of the 
presidential term. During the pendency of the proceeding Mr. Stanton would 
continue the legitimate possessor of the office. Therefore the commencement of 
a case would defeat the presidential passion for his instant removal. True to 
his passion, he removed the Secretary, well knowing that in this way he pre- 
vented a case for the court. 

Against this conclusion, where all the testimony is harmonized, we have cer- 
tain fruitless conversations with his cabinet, and an attempt to raise the ques- 
tion on a habeas corpus after the arrest of Cleneral Thomas. The conversations, 
whose exclusion has given a handle to the apologists, which they do not fail to 
use, only show that the President had made this question a subject of talk, and 
that, in the end, it was apparent that he could not make a case for the court so 
as to remove Mr. Stanton during his term, and as this was his darling object 
the whole idea was abandoned. The arrest of General Thomas seemed for a 
moment to furnish another chance ; but it is enough to say of the futile attempt 
at that time, that it was not only aftdr the removal of Mr. Stanton but after the 
impeachment had been voted by the'House. 

Had the President been in earnest, it was very easy for him to make a case 
by proceeding against a simple postmaster; but this did not suit him. He was 
in earnest only to remove Mr. Stanton. 

Nothing is clearer than that this Moot Court Apology is a wretched pretension 
and after-thought. It is the subterfuge of a criminal to cover up his crime — as 
if a surgeon had committed murder and then set up the apology that it was an 
experiment in science. 

THE APOLOGY OF PREROGATIVE. 

Then comes the Apology of Prerogative, being nothing less than the intolera- 
ble pretension that the President can sit in judgment on acts of Congress, and, 
in his discretion, refuse to execute them. This apology is in the nature uf a 
claim of right. Let this be established, and instead of a government of laws,. 
which is the glory of a republic, v/e have only tlie government of a single man. 
Here is the one-man power with a vengeance. 

Of course, if the President can sit in judgment on the tenure-of-office act, 
and set it aside as unconstitutional, there is no act of Congress which he may 
not treat in the same way. He may set aside the whole succession of statutes 
for the government of the army ; and his interview with General Emory attests 
his willingness to venture in that direction. In that spirit of oppression which 
seems to govern him, he may set aside the great statute for the establishment of 
civil rights without distinction of color. But why confine myself to instances? 
The whole statute-book will be subject to his prerogative. Vain is the require- 
ment of the Constitution that " the President shall take care that the lavi^s be 
faithfully executed." Vain is that other requirement, that a bill, approved by 
two-thirds of both houses over his veto, "shall become a law." His veto is 
perpetual ; nor is it limited to any special enactment. It is as broad as the 



29 

whole recorded legislation of the Republic. There is nothing which it cannot 
hurry into that maelstrom engulfing all. 

The President considers the statute unconstitutional, say the apologists. A 
mistake in judgment on such a question is not an impeachable offence, add the 
apologists. To which I reply, that it is not for a mistake in judgment but for 
usurpation in undertaking to exercise his judgment at all on such a question 
that he is impeached ; in other words, he is impeached for undertaking to set 
aside a statute. Whether the statute is constitutional or not is immaterial in 
this view. The President, after the statute has become a law, is not the person 
to decide. 

Ingenuity seeks to perplex the question by putting impossible cases. For 
instance, suppose Congress should have lost its wits, so far as to enact, in direct 
terms, that the President should not be Commander-in-chief of the army and navy, 
or that he should nothave the power to grant pardons ; and suppose still further, 
that Congress, in defiance of the positive text of the Constitution, should undertake 
to create " titles of nobility," must not the President treat such enactments as 
unconstitutional? Of course he must; but such instances do not help the pre- 
rogative now claimed. Every such enactment would be on its face nnconstitu- 
tional. It would be an act of unreasoning madness, which the President, as 
well as the courts, must disregard as if it were plain nonsense. Its unconstitu- 
tionality would be like an axiom, not to be questioned. No argument or author- 
ity would be needed. It proves itself. Nor would the duty of disobedience be 
less obligatory, even if the enactment had been sanctioned by the Supreme 
Court; and it is not more violent for me to suppose it sanctioned by the 
Supreme Court, than for the apologists to suppose it sanctioned by Congress. The 
enactment would be a self-evident monstrosity, and therefore must be disobejed 
as much as if one of the ten commandments were reversed, so that it should read, 
" Thou shalt kill." Such extreme cases serve no good purpose. The Constitu- 
tion is the supreme law of the land, and the people will not allow its axiomatic 
requirements to be set aside. An illustration outside the limits of reason is of 
no value. 

In the cases supposed, the unconstitutionality of the enactment is axiomatic, 
excluding opinion or argument. It is a matter of tact and not a matter of opin- 
ion. When the case is one on which there are two sides or two different views, 
it is then within the domain of argument. It is in no sense axiomatic. It is 
no longer a matter of fact but a matter of opinion. When submitted to the 
Supreme Court it is for their "opinion." Without occupying time with refine- 
ments on this head. I content myself with asserting that the judgment of the 
court must be a matter of opinion. One of the apologists has asserted that 
such a judgment is a matter of fact, and, generally, that the constitutionality of 
a statute is a matter of fact. I assert the contrary. When a bench of judges 
stands five to four, shall we say that the majority declare a fact and the minority 
declare an opinion ? 

Assuming, then, what I think cannot be denied, that the constitutionality of 
a statute is a matter of opinion, the question occurs, what opinion shall be 
regarded for the time as decisive. Clearly the opinion of Congress must control 
all executive officers, from the lowest to the President. According to a vener- 
able maxim of jurisprudence, all public acts are presumed to be correct ; omnia 
rite presumuntur. A statute must be presumed constitutional, unless on its face 
the contrary; and no decision of any court is required in its favor. It is the 
law of the land, and must be obeyed as such. The maxim which presumes 
constitutionality is just as binding as the analogous maxim of the criminal law, 
which presumes innocence. The President reversing all this has presumed the 
statute unconstitutional, and acted accordingly. In the name of prerogative 
he has set it aside. 

The apologists have been driven to invoke the authority of President Jack- 
son, who asserted for himself the power to judge the constitutionality of an act 



30 

of Congress, which in the course of legislation required his approval, although 
the question involved had been already adjudged by the Supreme Court. And 
he was clearly right. The court itself would not be bound by its adjudication. 
How could it constrain another branch of the government ? But Andrew Jack- 
son never put forth the pretension that it was within his prerogative to nullify 
a statute which had been passed over his veto in the way prescribed by the 
Constitution. He was courageous, but there was no such unconstitutional 
audacity in his life. 

The apologists have also summoned to their aid those great instances where 
conscientious citizens have refused obedience to unjust laws. Such was the case 
of Hampden, Avho set an example for all time in refusing to pay ship money. 
Such also was the case of many in our own country who spurned the fugitive 
slave bill. These exalted characters, on their conscience, refused to obey the 
law and suffered accordingly. The early Christians were required by imperial 
mandate to strew grain on the altar of Jove. Though good citizens, they pre- 
ferred to be martyrs. Such a refusal can be no apology for a President, who, 
in the name of prerogative breaks the great oath which he has sworn to see 
that the laws are faithfully executed. Rather do these instances, in their moral 
grandeur, rebuke the offender. 

Here I turn from this Apology of Prerogative, regretting that Icannot say 
more to unfold its destructive character. If anything could aggravate the trans- 
gressions of Andrew Johnson, stretching in long line from the beginning of his 
administration, it would be the claim of right which he sets up. Under such 
a claim the slenderest violation of law becomes a high crime and misdemeanor, 
to be pursued and judged by an indignant people. The supremacy of the laws 
must be preserved or the liberties of all will suffer. 

8VVARM OF TECHNICALITIES AND (QUIBBLES 

I now come upon that swarm of technicalities, devices, quirks, and quibbles, 
which, from the beginning, have infested this great proceeding. It is hard to 
speak of such things without giving utterance to a contempt not entirely par- 
liamentary. To>a3r-^at they are petty and miserable is not enough. To say 
that they are utterly imworthy of this historic occasion is to treat them politely. 
They are nothing but parasitic insects, like " vermin gendered in a lion's mane; " 
and they are so nimble and numerous that to deal with them as they skip about, 
one must have the patience of the Italian peasant, vA\o catches and kills, one 
by one, the diminutive animals that infest liis person. The public has not for- 
gotten the exhibition of " industrious fleas." The Senate has witnessed the 
kindred exhibition of " industrious quibbles." 

I can give specimens only, and out of many I take one which can never be for- 
gotten. Itwillbe found in the Opinion of the senator from West Virginia, (Mr. Van 
Winkle,) which, from beginning to end, treats this impeachment as if it were a 
prosecution for sheep-stealing in the police court of Wheeling, and brings to the 
defence all the unhesitating resources of a well-trained criminal lawyer. This 
famous Opinion, which is without a parallel in the annals of jurisprudence, must 
always be admired as the marvel of technicality in a proceeding where techni- 
cality should not intrude. It stands by itself, solitary in its originality. Other? 
have been technical also, but the senator from West Virginia is nothing else. 
Travelling from law point to law point, or rather seeing law point after law point 
skip before him. at last he lights upon one of the largest dimensions, and this 
he boldly seizes and presents to the Senate. 

According to him there is no allegation in the articles, that the order for the 
removal of Mr. Stanton was actually delivered to him, and, this being so, the 
senator declares that " if there is evidence of a delivery to be found in the pro- 
ceedings it cannot be applied to this article, in v/hich there is no charge or aver- 
ment." And this is gravely uttered on this transcendent occasion, when an 



indignant people lias risen to demand judgment of a criminal luler. The article 
alleges that the order was " unlawfully issued," and nobody doubts that its 
delivery was proved ; but this is not enough, according to this senator. I chal- 
lenge history for another instance of equal absurdity in legal pretension. The 
case which approaches it the closest is the famous extravagance of the Crown law- 
yer in the British Parliament, who, in reply to the argument of our fathers, that 
they could not be taxed without representation, bravely insisted that they wer(^ 
represented, and sustained himself by saying that, under the colonial charters, 
the lands were held " in common socage as of the borough of Greenwich in 
Kent," and, as Greenwich was represented in Parliament, therefore the colonies 
were represented there. The pretension was perfect in form, but essentially 
absurd. The senator from West Virginia has outdone even this climax of tech- 
nicality. Other generations, as they read this great trial, with its accumulation 
of transgressions ending in the removal of Mr. Stanton, will note Avith wonder 
that a pri)icipal reason assigned for the verdict of not guilty was that there was 
no allegation in the articles, that the order for the removal was actually received 
by Mr. Stanton, although there was a distinct allegation that it was " unlav/fnlly 
issued," and, in point of fact, it was in evidence that the order was received by 
him, and no hum;in being, not even the technical seuator, imagined that it was 
not. 

There is another invention, which has in its support some of the ablest of the 
apologists, like the senator from Iowa, (Mr. Grimes,) the senator from Maine, 
(Mr. Fessenden,) and the senator from Illinois, (Mr. Trumbull.) It is said that 
"as Mr. Stanton did not go out, therefore there was no removal ;" and therefore 
Andrew Johnson is not guilty. If, on an occasion like the present, the authority 
of names could change the uiu-eal into the real, then this pretension might have 
weight. But it is impossible that anything so essentially frivolous should be 
recognized in this proceeding. Such are the shifts of a cause to be defended 
only by shifts. Clearly the offence of the President was in the order " unlaw- 
fully issued," and this was complete the moment it was delivered. So far as 
depended upon him, Mr. Stanton was renioved. This was the way in which 
the country saw the transaction ; and this is the way in which it will be recorded 
by history. 

But these same apologists, with curious inconsistency, when they come to 
consider the appointment of General Thomas, insist that there was a vacancy 
in point of law, called by the senator from Maine a legal vacancy. If there 
was such a vacancy, it was because there had been a removal in point of law. 
There is no escape from this consequence. If there was a removal in point of 
law, and there was uo right to make it, the President was guilty of a misde- 
meanor in point of law and must take the consequences. 

It would be unprofitable to follow these inventions further. From those know 
all. In the face of presidential pretensions, inconsistent with constitutional 
liberty, the apologists have contributed their efibrts to save the criminal by sub- 
tleties, which can secure his acquittal in form only, as by a flaw in an indict- 
ment, and they have done this, knowing that he will be left in power to assert 
his prerogative, and that his acquittal will be a new letter of license. Nothing 
which the skill of the lawyer could supply has been wanting. This learned 
profession has lent to the criminal all the arts in which it excels, giving all to 
him and forgetting the Republic. Every doubt, every scruple, every technicality, 
every subtlety, every quibble has been arrayed on his side, when, by every 
rule of reason and patriotism, all should have been arrayed on the side of our 
country. The Public Safety, which is the supreme law, is now imperilled. Are 
we not told by Biackstone that the law is always ready to catch at anything in 
favor of liberty ? But these apologists " catch at anything " to save a usurper. 
In the early days of the common law there were technicalities in abundance, but 
these were for the maiat(;nauce of justice. On such was founded that extensive 



32 

ac f;!/fiwi jurisdiction of tlie King's Bench, which gives occasion for the elegant 
commentator to remark that, however startling these may be at first to the 
student, " he will find thom, upon further consideration, to be highly beneficent 
and useful." {BJaclistonc's Com., vol. Ill, p. 43.) But these generous fictions 
for the sake of justice must not be confounded with the devices by which justice 
is defeated. 

The trick of the apologists has been this : by the stringent application of 
technical rules to shut out all except the offences charged in the articles, and 
then, when stress was laid upon these offences, to cry out that at most they 
were only technical, and too trifling for impeachment. To satisfy lawyers the 
House weakly declined to act on the bloody transgressions of two years ; but 
they sought to provide against the future. Like the Roman ambassadors, they 
traced a line about the offender, which he was not to pass except at his peril. 
This was the line of law. At last he passed this line, openly, knowingly, defi- 
antly, and now, that he is arraigned for this plain offence, we are told that it is 
nothing, only a little technicality. One of the counsel at the bar, Mr. Groes- 
beck, in a speech wliich sliowed how much feeling and talent could be given to 
a wrong side, exclaimed : 

It almost shocks uie to think that the President of the United States is to be dragged out 
of otWce on these miserable little questions whether he could make an ad interim appoint 
nient for a single day. 

Only by excluding the whole context and all its antecedents could the ques- 
tion be reduced to this trivial form ; and yet, even thus reduced, it involved 
nothing less than the supremacy of the laws. 

I know not how such a question can be called " trifling." Often a great cause 
is presented on a narrow issue. Thus it was when English liberty was argued 
on the claim of ship-money, which was a tax of a few shillings only. Behind 
this question, called trifling by the kingly apologists of that day, loftily stood 
the great cause of the People against Prerogative, being the same which is now 
pending before the Senate. That other cause, on which at a later day hung 
the destinies of this continent, was presented on a narrower issue still. There 
was a tax of threepence a pound on tea, which our fathers refused to pay. But 
behind this question, so trifling to the apologists of prerogative, as behind that 
of ship-money, stood loftily the same great cause. The first cost Charles I 
his head. The second cost George III his colonies. If such a question can be 
disparaged as of small moment, then have the martyred dead in all times suffered 
in vain ; then was the costly blood lavished for the suppression of our rebellion 
an empty sacrifice. 

Constantly Ave arc admonished that we must confine ourselves to the articles. 
Senators express a pious horror at looking outside the articles, and insist upon 
directing attention to these only. Here the senator from Maine is very strong. 
It is the " specific offences charged " and these only that he can see. He will 
not look at anything else, although spread upon the record of the Senate, and 
filling the land with its accumuhated horrors. Of course such a system of 
exclusion sacrifices justice, belittles this trial, and forgets that essential latitude 
of inquiry which belongs to a political proceeding, having for its object Expul- 
sion from Office only and not punisliment. It is easy by looking at an object 
through the wrong end of an opera glass to find it dwarfed, contracted, and sol- 
itary. This is not the way to look at nature ; nor is it the way to look at 
Andrew Johnson. This great offender should be seen in the light of day ; pre- 
cisely as he is; nor more, nor less; with nothing dwarfed; with no limits to 
the vision, and with all the immense background of accumulated transgressions 
filling the horizon as far as'the eye can reach. The sight might ache ; but how 
else can justice be done? A senator who begins by turning these articles into 
an inverted opera glass, takes the first step towards a judgment of acquittal. 
Alas ! that the words of Burke are not true, when, asserting the comprehensive 
character of impeachment, he denied that, under it, " they who have no hope in 



the justice of their cause can have any hope that by some subtleties of form, 
some mode of pleading, by something, in short, different from the merits of the 
case, they may prevail." {Bond's Trial of Hastings, vol. \, p. 11.) The 
orator was right in thus indignantly dismissing all questions of pleading and all 
subtleties of form. This proceeding is of substance and not of form. It is on 
the merits only that it can be judged. Anything short of this is the sacrifice 
of justice. 

Such is the case of this enormous criminal. Events belonging to history, 
enrolled in the records of the Senate, and familiar to the country, are deliber- 
ately shut out from view, while we are treated to legal niceties without end. 
The lawyers have made a painful record. Nothing ever occurred so much 
calculated to bring the profession into disrepute ; for never before has been 
such a theatre where lawyers were the actors. Their peculiarities have been 
exhibited to the world. Here was a great question of justice appealing to the 
highest sentiments and involving the best interests of the country — one of the 
greatest questions of all time ; but the lawyers, in their instincts for the 
dialectics of the profession, forgot that everlasting truth which cannot be 
forgotten with impunity. They started at once in full cry. A quibble is to a 
lawyer what Dr. Johnson says it was to Shakspeare : " He follows it at all adven- 
tures ; it is sure to lead him out of the way; it has some malignant power over his 
mind, and its fascinations are irresistible. A quibble is the golden apple for 
which he will always turn aside from his career ; a quibble, poor and barren as 
it is, gives him such delight that he is content to purchase it by the sacrifice of 
reason, propriety, and truth." In this Shakspearian spirit our lawyers have 
acted. They have pursued their quibbles with the ardor of the great dramatist : 
and even now are chasing them through the Senate chamber. 

Unhappily this is according to history, and our lawyers are not among the- 
splendid exceptions. But there is a reward for those who stand firm. Who 
does nothonor the exalted magistrate of France, the Chancellor L'Hospital, who 
set such an example of rectitude and perfect justice ? Who does not honor those 
lawyers of English history, through whose toils liberty was upheld ? There 
was Selden, so wise and learned ; Pym, so grand in statesmanship ; Somers,. 
who did so much to establish the best securities of the constitution. Nor can I 
forget, at a later day, that greatest advocate, Erskine, who lent to the oppressed 
his wonderful eloquence ; nor Mackintosh and Brougham, who carried into the 
courts that enlarged intelligence and sympathetic nature which the profession 
of the law could not constrain. These are among the names that have already 
had their reward, above the artful crowd which in all times has come to the 
defence of prerogative. It is no new thing that v/e witness now. The lawyer 
in other days has been, as Ave know him, prone to the support of power and 
ready with his technical reasons. Whichever side he takes he finds reasons, 
plenty as pins. When free to choose and not hired, liis argument is the reflec- 
tion of himself. All that he says is his own image. He takes sides on a law 
point according to his sentiments. Cultured in the law, and with that aptitude 
which is sharpened by its contests, too easily he finds a legal reason for an ille- 
gal judgment. Next to an outright mercenary, give me a lawyer to betray a 
great cause. The forms of law lend themselves to the betrayal. It is impos- 
ible to forget that the v^orst pretensions of prerogative, no matter how collossal, 
have been shouldered by the lawyers. It was they who carried ship-money 
against the patriot exertions of Hampden ; and in our country it was they who 
held up slavery in all its terrible pretensions from beginning to end. What is 
sometimes called the legal mind of Massachusetts, my own honored State, bent 
before the technical reasoning which justified the unutterable atrocities of the 
fugitive slave bill, while the supreme court of the State adopted this crime 
from the bench. Alas! that it should be so. When will lawyers and judges,, 
see that nothing short of justice can stand ? 
3 Sumner 



34 



GUILTY ON ALL THE ARTULES. 



After this survey it is easy for me to declare how I shall vote. My duty will 
Toe to vote guilty on all the articles. If cousisteut with the rules of the Senate 
I .should vote, " Guilty of all and infinitely more." 

Not doubting that Mr. Stanton was protected by the tenure-of-office act, and 
that he was believed to be so by the President, it is clear to me that the charges 
in the first and second articles are sustained. These two articles go together. 
I have already said in the course of this Opinion that the appointment of Gen- 
eral Thomas as Secretary of War ad interim was without authority of law, 
and under the circumstances a violation of the Constitution, Accordingly the 
third article is sustained. 

Then come what are called the conspiracy articles. Here also I am clear. 
Plainly there was an agreement between the President and General Thomas to get 
possession of the War Department, and to prevent Mr. Stanton from continuing 
in office, and this embraced the control of the mails and property belonging to 
the department, all of which was contrary to the tenure-of-office act. Intimi- 
dation and threats were certainly used by one of the conspirators, and in the 
case of conspiracy the acts of one are the acts of all. The evidence that force 
was intended is considerable, and all this must be interpreted by the general 
character of the offender, his menacing speeches, and the long series of trans- 
gressions which preceded this conspiracy. I cannot doubt that the conspiracy 
was to obtain possession of the War Department, peaceably if possible, forcibly 
if necessary. As such it v/as a violation of law, worthy of the judgment of the 
Senate. This disposes of the fourth, fifth, sixth, and seventh articles. 

The eighth article charges that General Thomas Avas appointed to get the 
control of the moneys appropriated fox the military service and the Department 
of War. All this would be an incident to the control of the War Department, 
In getting the control of the latter he would be able to wield the former. The 
evidence applicable to the one is also applicable to the other. 

The ninth article opens a different question. This charges a wicked purpose 
to corrupt General Emory and draw him from his military duty. Not much 
passed between the President and the General ; but it was enough to show that 
the President was playing the part of lago. There was a hypocritical profes- 
sion of regard for the Constitution, while he was betraying it. Here again his 
past character explains his purpose, so as not to leave any reasonable doubt 
with regard to it. 

Then come the scandalous speeches, pi'oved as set forth in the articles, so that 
even the senator from Virginia [Mr. Van WinkleJ must admit that the evidence 
and the pleading concur. Here is no question of form. To my mind this is 
one of the strongest articles. On this alone, without anything else, I should 
deem it my duty to vote for ex})ulsion from office. A young lieutenant, at the 
bottom of the ladder, if guilty of such things, would be "cashiered" at once. A 
President, at the top of the ladder, with less excuse from the inexperience of early 
life, and with greater responsibility from the elevation he had reached, should 
be "cashiered " also ; and this is the object of impeachment. No person capa- 
ble of such speeches should be allowed to govern this country. It is absurd to toler- 
ate the idea. Besides being degraded, the country cannot be safe in such hands. 
The speeches are a revelation of himself, not materially different fromiwell-known 
incidents ; but they serve to exhibit him in his true character. They show 
him to be unfit for the official trust he enjoys. They were the utterances of a 
drunken man ; and yet it does not appear that he was drunk. Now it is accord- 
ing to the precedents of our history that a person disqualified by drunkenness 
shall be removed from office. This was the case of Pickering in 1804. But a 
sober man, whose conduct suggests drunkenness, is as bad at least as if he were 



35 

drunk. Is he not worse? If without the explanation of drunkenness he made- 
such harangues, it seems to me that his unfitness for office becomes more evi- 
dent, inasmuch as his deplorable condition is natural and not abnormal. The 
drunken man has lucid intervals ; but where is the assurance of a lucid interval 
for this perpetual offender ] Derangement is with him the normal condition. 

It is astonishing to find that these infamous utterances, where ribaldry vies- 
with blasphemy, have received a coat of varnish from the senator from Maine,. 
[Mr. Fessendeu,] who pleads that they were not "official;" nor did they "vio- 
late the Constitution, or any provision of the common or statute law, either in. 
letter or spirit." In presence of such apologies for revolting indecencies, it is- 
hard to preserve a proper calmness. Were they not uttered ? This is enough. 
The drunkenness of Andrew Johnson, when he took his oath as Vice-President^ 
"was not "official;" but who will say that it was not an impeachable offence ? 
And who will say that these expectorations differ in vileness from that drunken- 
ness 1 If they did not violate the Constitution pr any provision of the common 
or statute law, as is apologetically alleged, I cannot doubt that they violated the 
spirit of all laws. And then Ave are further i-eminded by the apologist of that 
"freedom of speech " which is a constitutional right; and thus, in the name of 
a great right, we arc to give a license to utterances that shock the moral sense, 
and are a scandal to human nature. Spirit of John Milton ! who pleaded so 
grandly for this great liberty, biit would not allow it to be confounded wnth 
license, speak now to save this republic from the shame of surrender to an insuffer- 
able pretension ! 

The eleventh article is the most comprehensive of all. In some respects it is an 
omnium gatherum. Here in one mass is what is contained in other articles, and 
something else beside. Here is an allegation of a speech by the President in 
which he denied that Congress was a Congress ; and then, in pursuance of this 
denial, it is alleged that he attempted to prevent the execution of the tenure-of- 
office act; also of an important clause in the army appropriation act ; and also 
of the reconstruction act ; and then the evidence followed, sustaining completely 
the allegation. The speech was made as set forth. The attempt to prevent the 
execution of the tenure-of-office act, who can question ? The attempt to cor- 
rupt General Emory is in evidence. The whole history of the country shows 
how earnest the President has been to arrest the reconstruction act, and gener- 
ally the congressional scheme of reconstruction. The removal of Mr. Stanton 
was in order to be relieved of an impediment to his purpose. I accept this 
article in gross ana in detail. It has been proved in all its parts. 

CONCLUSIO.V. 

In the judgment which I now deliver I cannot hesitate. To my vision the 
path is clear as day. Never in history was there a great case moi-e free from 
all just doubt. If Andrew Johnson is not guilty, then never was a political 
offender guilty before ; and, if his acquittal is taken as a precedent, never can a 
political offender be found guilty again. The proofs are mountainous. There- 
fore, yoii aro now determining v/hether impeachment shall continue a beneficent 
remedy in the Constitution, or be blotted out forever, and the country handed 
over to the terrible process of revolution as its sole protection. If the milder 
process cannot be made effective now, when will it ev^er be 1 Under what 
influences ? On what proofs \ You wait for something. What ? Is it usur- 
pation ] You have it before you, open, plain, insolent. Is it the abuse of dele- 
gated power ? That, too, you have in this offender, hardly less broad than the 
powers he has exercised. Is it the violation of law ? For more than two years 
he has set your laws at defiance; and when Congress, by a special enactment, 
strove to constrain him, he broke forth in rebellion against this constitutional 
authority. Perhaps you ask still for something more. Is it a long catalogue 



36 

of crime, where violence aud corruption alternate, while loyal men are sacrificed 
and the rebellion is lifted to its feet 'I That also is here. 

The apologists are prone to remind the Senate that they are acting viuder the 
obligation of an oath. So are the rest of lis, even if we do not ostentatiously 
declare it. By this oath, which is the same for all, Ave are sworn to do " impar- 
tial justice." It is justice, and this justice must be impartial. There must be 
no false weights and no exclusion of proper weights. Therefore, I cannot allow 
the jargon of lawyers on mere questions of form to sway this judgment against 
justice. Nor can I consent to shut out from view that long list of transgressions 
explaining and coloring the final act of defiance. To do so is not to render impar- 
tial justice, but to depart from this golden rule. The oath we have taken is 
poorly kept if we forget the Public Safety in devices for the criminal. Above 
all else, now and forever, is that justice wliich " holds the scales of right with 
even hand." In this sacred name, and in the name also of country, that great 
charity embracing so many other charities, I now make this final protest against 
all questions of form at the expense of the Republic. 

Something also has been said of the people, now watching our proceedings 
with patriotic solicitude, and it has been proclaimed that they are wrong to 
intrude their judgment. I do not think so. This is a political proceeding, 
which the people at this moment are as competent to decide as the Senate. 
They are the multitudinous jury, coming from no small vicinage, but from the 
whole country ; for, on this impeachment, involving the Public Safety, the vicin- 
age is the whole country. It is they who have sent us here, as their represen- 
tatives, and in their name to consult for the common weal. In nothing can v/e 
escape their judgment, least of all on a question like that now before us. It is 
a mistake to suppose that the Senate only has heard the evidence. The jycoj^le 
have heard it also, day by day, as it was delivered, and. have carefully consid- 
ered the case on its merits, j^roperly disniissing all apologetic suhtleties. It will 
be for them to review what has been done. They are above the Senate, aud 
will " rejudge its justice." Thus it has been in other cases. The popular super- 
stition, which long surrounded the Supreme Court, could not save this tribunal 
from condemnation, amounting sometimes to execration, when, by an odious 
judgment, it undertook to uphold slavery ; and down to this day Congress has 
justly refused to place the bust of the Chief Justice, who pronounced this judg- 
ment, in the hall of that tribunal where he presided so long. His predecessors 
are all there in marble ; no marble of Taney is there. The present trial, like 
that in the Supreme Court, is a battle with slavery. Acquittal is another Dred 
Scott decisio?), and another chapter in the Barbarism of Slavery. How can sen- 
ators, who are discharging a political function only, expect that the voice of the 
people will be more tender for them than it was for a Chief Justice pronouncing 
judgment from the bench of the Supreme Court, in the exercise of judicial power ? 
His fate we know. Nor learning, nor private virtues, nor venerable years, could 
save him from justice. In the great pillory of history he stands, and there he 
must stand forever. 

The people cannot witness with indifference the abandonment of tlie great 
Secretary, who organized their armies against the rebellion and then organized 
victory. Following him gratefully through the trials of the war, they found 
new occasion for gratitude when he stood out aloiie against that wickedness 
which was lifted to power on the pistol of an assassin. During these latter days, 
while tyrannical prerogative invaded all, he has kept the bridge. When at a 
similar crisis of English history Hampden stood out against the power of the 
Crown, it is recorded by the contemporary historian, Clarendon, that " he became 
the argument of all tongues ; every man inquiring who aud what he was, that 
durst at his own charge support the liberty aud property of the kingdom and 
rescue his country from being made a prey to the Court." Such things are also 
said with equal force of our Secretary. Nor is it forgotten that the Senate, by 



37 

tw^o solemn votes of more than two-thirds, has twice instructed him to stay at 
the War Department, the President to the contrary notwithstanding. The 
people will not easily understand on what principle of Constitution, law, or 
morals, the Senate can twice instruct the [Secretary to stay, and then, by another 
vote, deliberately surrender him a prey to presidential tyranny. Talk of a 
somersault; talk of self-stultification ; are not both here? God save me from 
participation in this disastrous wrong, and may He temper it kindly to our 
aiflicted country. 

For myself, I cannot despair of the Republic. It is a life-boat, which wind and 
wave cannot sink; but it may suffer much and be beaten by storms. All this 
I cleai-ly see before us, if you fail to displace an unfit commander, whose power 
is a peril and a shame. 

Alas ! for all the evil that must break upon the country, especially in the suf- 
fering south, as it goes forth that this bad man is confirmed in the prerogatives 
he has usurped. 

Alas ! for that peace and reconciliation, the longing of good men, now post- 
poned. 

Alas! for that security, so important to all, as the only foundation on which 
to build, politically or financially. This, too, is postponed. How can people 
found a government or plant or buy, unless they are first secure 1 

Alas ! for the Republic, degraded as never before, while the "Whiskey Ring 
holds its orgy of corruption, and the Ku-Klux-Klan holds its orgy of blood ! 

Alas ! for the hearts of the people, bruised to unutterable sadness, as they 
witness a cruel tyranny installed once more ! 

Alas ! for that race so long oppressed, but at last redeemed from bondage, now 
plunged back into another hell of torment. 

Alas ! for the fresh graves, which already begin to yawn, while violence, 
armed with your verdict, goes forth, like another Fury, and murder is quickened 
anew. 

Alas ! for the Unionists, white and black alike, who have trusted to our flag. 
You now offer them a sacrifice to those persecutors whose representative is before 
you for judgment. They are the last in my thoughts, as I pronounce that vote 
which is too feeble to save them from intolerable wrong and outrage. They are 
fellow-citizens of a common country, brethren of a common humanity, two com- 
manding titles, both strong against the deed. I send them at this terrible mo- 
ment the sympathy and fellowship of a heart that suffers with them. So just a 
cause cannot be lost. Meanwhile may they find in themselves, and in the good- 
ness of an overruling Providence, that rescue and protection which the Senate 
refuses to give. 



APPENDIX TO MR. SUMNER'S OPINION. 

[In the course of this trial there was an important claim of power by the 
Chief Justice, as presiding officer of the Senate, on which at the time Mr. Sum- 
ner expressed his opinion to the Senate, when it withdrew for consultation. As 
this claim was calculated in certain contingencies to affect the course of proceed- 
ings, possibly the final judgment, and as it may hereafter be drawn into a pre- 
cedent, Mr. Sumner has been unwilling to lose this opportunity of recording 
his reasons against it. Therefore, to his Opinion on the merits, he annexes this 
further Opinion on an incidental question in the proceedings.] 

OPINION OF HON. CHARLES SUMNER, OF MASSACHUSETTS, ON THE QUES- 
TION CAN THE CHIEF JUSTICE, PRESIDING IN TPIE SENATE, RULE OR 
VOTE ? 

In determining the relations of the Chief Justice to the trial of the President, 
we must l6ok, first, to the Constitution ; for it is solely by virtue of the Con- 
stitution that this eminent magistrate is transported from his own natural field 
to another, where he is for the time an exotic. Of course, the Chief Justice in 
his OAvn court is at home ; but it is equally clear that when he comes into the 
Senate he is a stranger. Though justly received v/ith welcome and honor, he 
cannot expect membership or anything beyond those powers which are derived 
directly from the Constitution, by virtue of which he temporarily occupies the 
chair. 

Repairing to our authoritative text we find the only applicable words to be 
these : 

The Seuate shall have the sole power to try all impeachments. When the President of the 
United States is tried, the Chief Justice shall preside ; and uo person shall be convicted with- 
out the concurrence of two-thirds of the members present. 

This is all. The Chief Justice ^hdll j^reside but this is subject to two limit- 
ations specifically declared. First, the trial is to be by the Senate solehj, and 
nobody else ; thus carefully excluding the presiding officer from all participa- 
tion, except so far as is implied in the power to preside ; and secondly, judg- 
ment of conviction can be only by a vote of "two-thirds of the members j)res- 
ent,^' thus again excluding the presiding officer, unless it is assumed that he is a 
member of the Senate. 

On the face of this text it is difficult to find any ambiguity. Nobody ques- 
tions that the Chief Justice must preside. Can anybody question that the trial 
must be by the Senate solely, and nobody else .^ To change this requirement 
is to fly in the face of the Constitution. Can anybody question that the judg- 
ment of conviction mast be by the votes of ''' members present," and nobody 
else? Now, smce the Chief Justice is not a "member" of the Senate, it is 
plain that he is positively excluded from any vote on the final question. It 
only remains that he should "preside." And here the question recurs as to the 
meaning of this familiar term. 

The person who presides is simply, according to the language of our rules, 
"presiding officer," and this designation is the equivalent or synonym of 
speaker, and also of prolocutor, each of which signifies somebody who speaks , 
for the house. It is not implied that he votes with the house, much less that 
he decides for the house, but only that he is the voice of the house — its speaker. 
What the house has to say it says through him; but, except as the organ of 
the house, he is silent, unless he be also a member, when he superadds to his 
powers as presiding officer the powers of a member also. From this brief state- 
ment it appears at once how limited his functions must be. 
4 Sumner 



40 

Here I might stop; but, since this question has assumed an unexpected 
importance, I am induced to go further. It will be easy to show that the 
language of the Constitution, if seen in the light of English parliamentary his- 
\ tory, must have an interpretation identical with its natural import. • 

Nothing is clearer than this. If language employed in the Constitution had 
already, at the time of its formation, received a definite meaning, it must be 
interpreted accordingly. Thus, when the Constitution secures the " trial by 
jury," it secures that institution as defined by antecedent English law. So, 
also, when it declares that the judicial power shall extend to "all cases in law 
and equity" arising under the Constitution, it recognizes the distinction between 
law and equity peculiar to English law. Courts of common law and courts of 
equity are all implied in this language; and, since there is no further definition 
of their powers, we must ascertain them in England. Cushing, in determining 
the rules of proceeding in our American legislatures, says : 

Such was the practice of tie two liouses of the British Parliauieut when our ancestors 
eniigruted; and such has continued to be and now is the practice in tijut body. (Cushin<T, 
Lex Parliamenlaria, see. 'M'2.) 

This resource has been most persuasively presented by Mr. Wirt, in his 
remarkable argument on the impeachment of Judge Peck, where he has vindi- 
cated and expounded the true rule of interpretation. 

According to this eminent authority, what he calls " the English archetypes" 
were the models for the framers of our Constitution. The courts were fashioned 
after these " archetypes." They were instituted according to " English originals, 
to which they Avere manifestly referred by the Constitution itself." (Trial of 
Peck, p. 499.) Here again I quote the words of Mr. Wirt. 

All this is precisely applicable to that part of the Constitution now under 
consideration. In its essential features it was borrowed from England. There 
is its original, its model, its archetype. Therefore, to England we go. 

Not only to England must we go, but also to parliamentary law, as recognized 
in England at the adoption of our Constitution. The powers of a presiding 
ofiicer, where not specifically declared, must be found in parliamentary law. 
The very term j^rcside is parliamentary. It belongs to the technicalities of this 
branch of law as much as indict belongs to the technicalities of the common 
law. In determining the signification of this term it will be of little avail to 
show some local usage, or, perhaps, some decision of a court. The usage or 
decision of a Parliament must be shown. Against this all vague speculation or 
divination of reason is futile. I will not encumber this discussion by superflu- 
ous authorities. In now insisting that this question must be determined by 
parliamentary law, I content myself with citing the often-cited words of Lord 
Coke in his Fourth Institute : 

And as every court of justice hath laws and customs for its direction, some by the common 
ieiw, some by the civil and canon laws and customs, so the high court of Parliament suis 
propriis legibus et consuetiidinibus snbsistit ; all weighty matters in any Parliament, moved 
concerning the peers of the realm or lords or commons in Parliament assembled, ought to be 
determined, adjudged, and discussed bij the court of Parliament, and not by the civil law, nor 
yet by the common laws of this realm, used in more inferior'courts. (Coke, 4th Institute, 
p. 15.) ■ 

Here is the true rule. It is to " the course of Parliament" that we must 
resort. It is in "the course of Parliament" that we must find all the powers 
of a presiding ofiicer, and all that is implied in the authority fo jireside. " The 
Chief Justice shall fresideT Such is the Constitution. Nothing is specified 
with regard to his powers. Nothing is said. What was intended was left to 
inference from the language employed, which must be interpreted according to 
" the course of Parliament ;" precisely as what was intended by trial hy jury 
is ascertained from the " common law." In the latter case we go to the " com- 
mon law," in the former case we go to the " course of Parliament." You may 
as well turn away from the common law in the one as from the " course of Par- 



41 

liameut" ia the other. In determining the " course of Parliament" we may 
resort to the summary of text-writers, and, better still, to the authentic instances 
of history. 

Something has been said in this discussion with regard to the example of 
Lord Erskine, who presided at the impeachment of Lord Melville. This was 
in 1806, during the short-lived ministry of Fox, when Erskine was chancellor. 
It is by a misapprehension that this instance is supposed to sustain the present 
assumptipux When seen in its true light it will be found to be in harmony with 
what appears to be the general rule. Erskine had at the time two characters. 
He was lord chancellor, and in this capacity was presiding officer of the House 
of Lords, without the right to rule or vote or even to speak. Besides being 
chancellor he was also a member of the House of Lords, with all the rights of 
other members. It will be seen, as we advance in this inquiry, that, again and 
again, it has been practically decided, that, whatever may be the powers of a 
presiding officer, who is actually a member of the body, a presiding officer who 
is not a member cannot rule or vote or even speak. In making this statement 
now I anticipate the argument. I do it at this stage only to put aside the sug- 
gestion founded on the instance of Lord Chancellor Erskine. 

I begin with the most familiar authority — I mean the eminent writer and 
judge. Sir "William Blackstone. In his Commentaries, where will be found, in 
elegant form, the complete body of English law, you have this whole matter 
stated in a few suggestive words : 

The speaker of the House of Lords, if a lord of Parliament, may give his opinion or aro'ue 
any question in the House. 

Of course, if not a lord of Parliament, be could not give his opinion or argue 
any question. This is in accordance with all the authorities and unbroken 
usage : but it has peculiar value at this moment, because it is the text of Black- 
stone. This work was the guide-book of our fathers. It first appeared in 
17G5-'69, the very period when the controversy with the mother country was 
fervid ; and it is an unquestionable fact of history that it was read in the colo- 
nies with peculiar interest. Burke, in one of his masterly orations, portraying 
the character of our fathers, says that more than one-half of the first edition of 
Blackstone's Commentaries was bought by them. Nothing can be clearer than 
that they knew it well. 

The framers of the Constitution had it before them constantly. It was their 
most familiar work. It was to them as Bowditch's Navigator is to the mariner 
in our day. They looked to it for guidance on the sea they were traversing. 
When they undertook to provide that the Chief Justice, who was not a member 
of the Senate, should preside at the impeachment of the President, they knew 
well that he could have no power " to give an opinion or argue any question in 
the House ;" for Blackstone had instructed them explicitly on this head. They 
knew that he was simply a presiding officer according to the immemorial usage 
of the upper House in England, icith sucJi powers as belong to a jyresiding officer 
who is not a rnember of the hotise, and none other. 

The powers of the presiding officer of the House of Lords are illustrated by 
authority and precedents, all in harmony with the statement of Blackstone. 
Ordinarily the keeper of the great seal is the presiding officer ; but he can do 
little more than put the question, unless he is a member of the body. Any other 
person, as a chief justice, may be delegated by royal commission. According 
to the rules of the house, even if he is a peer, he cannot speak without quitting 
the woolsack, which is the chair, and going " to his own place as a peer." The 
right of speech belongs to him as a member, but he cannot exercise it without 
leaving his place as presiding officer. To this extent is he circumscribed. 

A late writer on parliamentary law, whose work is a satisfactory guide, thus 
sententiously sums up the law and usage : 

The position of the speaker of the House of Lords is somewhat anomalous, for though he 
is the president of a deliberative assembly, he is invested with no more authority than any 



42 

other member ; and if not hiinsclf a inemhcr, his office is limited to the putting of questions 
and other formal proceedings. (May, Parliamentiary Practice, p. 22(1, cbap. 7.) 

This statement is in obvious harmony with that of Blackstone, so that there 
is no difference between the writer v/ho is our guide to-day, and the learneil 
commentator who was the guide of our fathers. 

Mr. May goes still further, and lets us know that it is only as a member of 
the house that the presiding officer can address it, ever' on jiomts of order. 

Upon points of order the speaker, if a peer, may address the house, but as liis opinion is 
liable to be questioned, lihe that of any other uicr, he does not often exercise the right. (P. 
220.) 

Thus, even if a peer — even if a member of the upper house — the presiding 
officer cannot rale a point of order nor address the house upon it, except as any 
other member ; and what lie says is open to question, like the utterance of any 
other member. Such is the conclusion of the most approved English authority. 

American writers on parliamentary law concur v.'ith the English. Gushing, 
who has done so much to illustrate this whole subject, says of the presiding 
officer of the lords that " he is invested witli no more authority for the preser- 
vation of order than any other member, and if not a member, his office is limited 
to the putting of questions and other formal proceedings ; if he is a peer, he 
may address the house and participate in the debate as a member." He then 
says again, " if a peer he votes w'ith the other members ; if not, he does not 
vote at all y and he adds, "(here is no casting rote in the lords." (§ 2SS.) 
This statement was made long after the adoption of the national Constitution, 
and anterior to the present controversy. 

There are occasions when the lords have a presiding officer, called a lord high 
steward. This is on the trial of a peer, whether upon impeachment or indict- 
ment. Here again we find the same rule stated by Edmund Burke, in his 
masterly report to the House of Commons on the impeachment of Warren Has- 
tings. These are his words : 

Every peer present at the trial and every temporal ]>eer hath a right to be present in every 
part of the proceeding, voteth upon every question of law and fact ; and the question is carried 
by the major vote, the lord high stexcard himself voting merely as u peer and member of t/iat 
court, in common icith the rest of the. peers, and in no other right. (Burke's Works, vol. 6, p. 
512, Bohn's Edition.) 

In another place the report, quoting the Commons' journal, says : 

That the lord high steward was but as a speaker or chairman for the more orderly pn>- 
ceeding at the trial. (Ibid., p. 515.) 

In our day there have been instances where the lord chancellor sat as presiding 
officer -Nvithoitt being a peer. Brougham took his seat on the 22d November, 
1830, before his patent as a peer had been made out, and during this interval his 
energies were suppressed while he was simply presiding officer and nothing else. 
The same was the case with that emment lawyer. Sir Edward Sugden, who sat 
as presiding officer on the 4th of March, 1852, although he was still a commoner ; 
and it was also the case with Sir Frederick Thesiger, who sat as presiding officer 
on the 1st March, 1858, although he was still a commoner. These instances attest 
practically the prevalence of the early rule down to our day. Even Brougham, 
who never shrank from speech or from the exercise of power, was constrained 
to bend to its exigency. He sat as lord chancellor, and in that character put 
the question ; but this was all until he became a member of the house. Lord 
Campbell expressly records that, while his name appears in the entry of those 
present on the 22d November, 1S30, as Henricus Broughain, Cancellarius, " he 
had no right to debate and vote till the follovviug day," when the entry of his 
name and office appears as Dominus Brougham ct Vaux, Cancellarius. 

I pass from these examples of recent history and go back to the rule as known 
to our fathers at the adoption of the Constitution. On this head ihe evidence 
is complete. It will be found in the State Trials of England, in parliamentary 
history, and in the books of law^, but it is nowhere better exhibited than in the 



43 

Lives of the Chancellors, b}' Lord Campbeli, himself a member of the House 
of Lords and a chasicellor, f;imilliar with it historically and practically. jEIe 
has stated the original rule, and in his work, which is as interesting as volumi- 
nous, has furnished constantly recurring illustrations of it. In the introduc- 
tion to his Lives, where he describes the office of chancellor, Lord Campbell 
enunciates the rule, which I give in his own words : 

AYliether per or commoner, the Chaucellor is not, like the Speaker of the Commons, 
moderator of the proceedings of the house in which he seems to preside. He is not addressed 
in debate ; he does not name the peer who is to be heard. He, is not appealed to as an 
authority on points of order, and he may cheer the sentiments expressed by his colleagues in 
the ministry. (Campbell's Lives of Chancellors, vol. ], p. 17.) 

The existing rules of the Senate have added to these powers ; but such is the 
rule wPth regard to the presiding officer of the House of hords, even when a peer. 
He is not appealed to on points of order. If a commoner, his power is still 
less. 

If he be a commoner, notwithstanding a resolution of the House that he is to be proceeded 
against for any misconduct as if he were a peer, he has neither vote nor deliberative voice, and 
he can only put the question, and communicate the resolutions of the House according to the 
directions he receives. (Ibid.) 

In the early period of English history the chancellors were often ecclesiastics, 
though generally commoners. Fortescue, Wolsey, and More were never peertj. 
This also was the case with Sir Nicholas Bacon, the father of Lord Bacon, who 
held the seals under Queen Elizabeth for twenty years, and was the colleague iu 
the cabinet of Burleigh. Lord Campbell thus remarks on his positio)i as pre- 
siding officer of the House of Lords : 

Not being a peer, he could not take a share in the Lords debutes, but presiding as Speaker on 
the woolsack he exercised a considerable influence over their deiiberatious. (Ibid., vol. 2, p. 
104.) 

Then again we are told : 

Being aconmioner, he could neither act as Lord Steward nor sit upon the trial of the 
Duke of Norfolk, who was the first who suffered for favoring Mary's cause. (Ibid., p. 105.) 

Thus early do we find an illustration of this rule, which constantly reappears 
as we travel down the annals of Parliament. 

The successor of Sir Nicholas Bacon was Lord Chancellor Bromley; and here 
Ave find a record interesting to us at this moment. After presiding at the trial 
of Mary, Queen of Scots, the lord chancellor became ill and took to his bed. 
Under the circumstances Sir Edmund Anderson, chief justice of the common 
pleas, was authorized by the Queen to act as a substitute for the chancellor, and 
thus the chief justice became the presiding officer of the House of Lords to the 
close of the session without being a peer. 

Then came Sir Christopher Hatton, the favorite of Queen Elizabeth, and so 
famous as the dancing chancellor, who presided in the House of Lords by vir- 
tue of his office, but never as a peer. He v,-as followed by the exemplary 
Ellesjnere, who was for many years chancellor without beluga peer, but finished 
his career by adding to his title as presiding officer the functions of a member. 
The greatest of all in the list now followed. After much effort and solicitation 
Bacon becomes chancellor with a peerage ; but it is recorded in the Lords' 
journals that when he spoke he removed " from the woolsack to his seat as a 
peer," thus attesting that he hud no voice as presiding officer. At last, when 
the corruptions of this remarkable character began to overshadow the land, the 
chief jiistice of the King's Bench, Sir James Ley, was designated by the King 
to act as Speaker of the House of Lords. Soon afterward Bacon fell. i\Iean- 
while it is said that the chief justice had very creditably performed "the duties 
of Speaker of the House of Lords." (Campbell's Lives of Chancellors, vol. 2, 
p. 443.) In other words, according to the language of our Constitution, he had 
jn'csided well. 

Then came Coventry and Finch as lord keepers. As the latter absconded 



'^W ' ^ 



44 

to avoid impeaclimeut by tlie House of Commons Littleton, chief justice of the 
common fleas, " was placed on tlie woolsack as Speaker." At a later time he 
received tlie great seal as lord keeper. This promotion was followed by a 
peerage, at the prompting of no less a pei'son than the Earl of Strafford, " who 
thought he might be more useful if permitted to take part in the proceedings of 
the House as a peer than if he could only put the question as Spea/ce?-." (Ibid., 
vol. 2, p. 585.) Clarendon in his history says that, as a peer, he could have 
done Strafford " notable service." (History of the Rebellion, book .3, p. 104.) 
But the timid peer did not render the expected service. 

Then came the period of civil war, when one great seal was with the King 
and another was with Parliament. Meanwhile the Earl of ]\Ianchester was 
appointed Speaker of the upper house, and as such took his place on the wool- 
sack. As a peer he had all the privileges of a member of the house over which 
he presided. Charles II, during his exile, had appointed Hyde, afterward Earl 
of Clarendon, as chancellor ; but the monarch was for the time without a court 
and without a Parliament. On the restoration in 1660 the chancellor at once 
entered upon all his duties, judicial and parliamentary ; and it is recorded that, 
" though still a commoner, he took his place on the woolsack as Speaker by pre- 
scription." (Campbell's Lives, vol. 3, p. 187.) A year later the commoner 
was raised to the peerage, thus becoming more than presiding officer. During 
illness from the gout the place of the chancellor as presiding officer was some- 
times supplied by Sir Orlando Bridgman, chief justice of the common pleas, 
who, on these occasions, was presiding officer, and notiiing more. Lord Camp- 
bell says " he frequently sat as Speaker in the House of Lords " — (Ibid., 279) — 
which means that hejrrcsicled. < 

On the disgrace of Lord Clarendon, the disposal of the great seal was the 
occasion of perplexity. The historian informs us that " after many doubts and 
conflicting plans among the King's male and female advisers it was put into the 
hands of a grave common-law judge," (ibid., p. 272,) being none other than the 
chief justice of the common pleas, Avho had already presided in the absence of 
Lord Clarendon ; but he was never raised to the peerage. Here we have another 
explanation of the precise relation of such an official to the House. Lord Camp- 
bell expressly remarks that " never being created a peer, his only duty in the 
House of Lords tvas to put the question, and to address the two houses in (^xplana- 
tton of the royal will on the assembling of Parliament." (Ibid., p. 281.) Here 
is the same recurring definition of the term jJi'csidc. 

For some time afterward there seems to have been little embarrassment. 
Nottingham, who did so much for equity; Shaftsbury, who did so little; Guil- 
ford, so famous through contemporary biography, and Jeffries, so justly imfa- 
raous — successively heads of the law — were all peers. But at the revolution of 
1688 there was an interregnum, which brought into relief tlie relations between 
the upper house and its presiding officer. Jeffries, on his flight, dropped the 
great seal in the Thames. King James had gone. There was, therefore, no 
presiding officer for the Lords. In order to supply this Avant, the Lords, at the 
meeting of the Convention Parliament, chose one of their own number, the 
Marquis of Halifax, as their Speaker, and, in the exercise of the power inherent 
in them, they continued to re-elect him day by day. During this period he was 
strictly President pro tempore. At last, Sir Robert Atkyns, chief baron of the 
exchequer, a commoner, took his seat upon the woolsack as Speaker, appointed 
by the Crown. Here, again, we learn that "serious inconvenience was 
experienced from the occupier of the woolsack not being a memher of the House.'''' 
(Ibid., vol. 4, p. 53 ) At last, in 1693, the great seal was handed to Sir John 
Somers, lord keeper ; and here we have another authentic iHustratiou of the 
rule. Although the official head of the English law, and already exalted for 
his ability and varied knowledge, this great man, one of the saviors of constitu- 
tional liberty in England, was for some time merely presiding officer. The his- 



iV^t. 



45 

torian records that " while he remainecl a comraonor lie presided on the woolsack 
only as Speaker," (ibid., p. 118;) that he "had only to put the question, and 
took no part in debate." (Ibid., p. 122.) This is the more worthy of notice 
because Somers was recognized as a consummate orator. At last, according to 
the historian, " there was a strong desire that he should take part in the debates ;" 
and the King, to enable him to do this, pressed his acceptance of a peerage, which, 
after some further delay, .he did, and he was afterward known as Lord Somers. 
(Ibid., p. 125.) 

In the vicissitudes of public life this great character was dismissed from office, 
and a successor was found in an inferior person. Sir Matthew Wright, who was 
created lord keeper without a peerage. For the five years of his official life it 
is recorded that he occupied the woolsack, " merely putting the question, and, 
having no influence over the proceedings.'''' (Ibid., p. 245.) Thus he presided. 

Then came the polished Cowper, at first without a peerage, but after a short 
time created a member of the House. Here again the historian records that 
while he remained a coni'iioner ''he took his place on the woolsack as Speaker, 
without a right to delate or vote.'" It appears that "not being permitted to share 
in the debates of the House of Lords, he amused himself by taking notes of the 
speeches on the opposite sides." (Ibid., pp. 304, 305.) Afterward, even when 
a peer, and as chancellor, presiding at the impeachment of Sacheverell, Lord 
Cowper did not interfere farther than by saying, " Gentlemen of the House of 
Commons," or "Gentlemen, you that are counsel for the prisoner may proceed." 
(Ibid., p. 318.) 

Harcourt followed Cowper as keeper of the great seal, but he was not imme- 
diately raised to the peerage. It is recorded that during one year he had " only 
to sit as Speaker." (Ibid., p. 456.) That is, he had only to preside. After- 
wards, as a peer, he became a member of the body. He was succeeded as chan- 
cellor by the Earl of Macclesfield, with all the rights of membership. 

Lord Macclesfield, being impeached of high crimes and misdemeanors as chan- 
cellor. Sir Peter King, at the time ch'ief justice of the commnn pleas, ivas made 
presid'mg officer of the upper house, with only the limited powers belonging to 
a presiding officer, who is not a member of the body. Here the record is com- 
plete. Turn to the trial and you will see it all. It Avas he who gave directions 
to the managers, and also to the counsel ; who put the question, and afterward 
pronounced the sentence ; but he acted always as presiding officer, and nothing 
else. I do not perceive that he made any rulings during the progress of the trial. 
He was chief justice of the common pleas, acting as president ^^ro tempore. 
The report describing the opening of the proceedings says that -the articles of 
impeachment, with the answer and replication, were read " by direction of Lord 
Chief Justice King, speaker of the House of Lords." (Howell, State Trials, vol. 
IG, p. 768.) This instance furnishes another definition of the term preside. 

All this is compendiously described by Lord Campbell, as follows : 

Sir Peter, not being a peer, of course had no deliberatice voice, but, during tlie trial, as the 
organ of the house of peers, he regulated the procedure without any special vote, intima- 
ting to the managers and to the counsel for the defendant when they were to speak and to 
adduce their evidence. After the verdict of guilty, he ordered the Black Eod to produce his 
prisoner at the bar ; and the speaker of the House of Commons having demanded judgment, 
he, in good taste, abstaining from making any comment, dryly, but solemnly and impres- 
sively pronounced the sentence which the house had agreed upon. (Campbell's Lives, vol. 
4, p. 6U9.) 

This proceeding was in 1725. At this time, Benjamin Franklin, the printer- 
boy, was actually in London. It is difficult to imagine that this precocious 
character, whose observation in public affairs was as remarkable as in philosophy, 
should have passed 18 months in London at this very period without noting 
this remarkable trial and the manner in which it was conducted. Thus, early 
in life he saw that a chief justice might jyreside at an impeachment without being 
a member of the House of Lords or exercising any of the powers which belong 
to membership. 



46 

Besides bis emineuce as a chief justice, King was the nephew of the great 
thinker Avho has exercised such influence on English and American opinion, 
John Locke. Shortly after presiding at the impeachment as chief justice he 
became chancellor, with a peerage. 

He was followed in his high post by Talbot and Hardwicke, each Avith a 
peerage. Jumping the long period of their successful administrations, when 
the presiding officer was also a member of the upper -house, I come to another 
instance where the position of the presiding officer became peculiarly apparent ; 
and this, too, occurred when Benjamin Franklin was on his protracted visit to 
London as agent for the colonies. I refer to Sir Robert Henley, who became 
lord keeper in 1757, without a peerage. The King, George II, did not like 
him, and therefore, while placing him at the head of the law, declined to make 
him a member of the house over which he was to preside. At last, in 1760, 
the necessities of the public service constrained his elevation to the peerage, 
and soon afterward George III, who succeeded to the throne without the ani- 
mosities of his grandfather, created him chancellor and Earl of Northington. 

For four years Henley, while still a commoner, was presiding officer of the 
House of Lords. During this considerable period he was without a voice or vote. 
The historian remarks that " if there had been any debates he was precluded 
from taking part in them." (Campbell's Lives, vol. 4, p. ISS.) And then, again, 
in another place, he pictures the defenceless condition of the unhappy magistrate 
with regard to his ov/a decisions in the court below, when heard on appeal, as 
follows : 

Lord Keeper Heuley, till raised lo the peerage, used to complaiu bitterly of being obliged 
to put the questiou for the reversal of his own decrees, without being permitted to say a 
word in support of them. (Ibid., vol. 1, p. 17, note.) 

Lord Eldon, in his Anecdote Book, furnishes another statement of this case, 
as follows : 

When Sir Robert Henley presided iu the House of Lords as lordjkeeper, he could not enter 
into debate as a chancellor being a peer, does ; and, therefore, when tliere was an appeal 
from his judgment in the court of chancery, and the law lords then in the liouse moved to 
reverse his judgments, he could not state the grounds of his opinions and support his decisions. 
(Twiss's Life of Eldon, vol. 1, p. 319.) 

And thus for four years this commoner presided over the House of Lords. 

A few months before Henley first took his place as presiding officer, Franklin 
arrived in London for the second time, and continued there, a busy observer, 
until after the judge was created a peer. Even if he had been ignorant of 
parliamentary usage, or had forgotten what passed at the trial of Lord Maccles- 
field, he could not have ftiiled to note that the House of Lords had for its pre- 
siding officer an eminent judge, who, not being a member, could take no part in 
its proceedings beyond putting the rjuestion. 

Afterward, in 1790, there was a different arrangement. Owing to a difficulty 
in finding a proper person as chancellor, the great seal was put in commission, 
and Lord Mansfield, chief justice of England, was persuaded to act as presid- 
ing officer of the upper house. Curiously enough, Franklin was again in 
England, on his third visit, and remained through the service of Lord Mansfield 
in this capacity. Thus this illustrous American, afterward a member of the 
convention that framed the National Constitution, had, at two different times, 
seen the House of Lords with a presiding officer who, not being a member of 
the body, could only put the question, and then again with another presiding 
officer, who, being a member of the body, could vote and speak, as well as put 
the question. 

But Franklin was not the only member of the national convention to whom 
these precedents were known. One or more had been educated at the Temple 
in London. Others v/ere accomplished lawyers, familiar with the courts of the 
mother country. I have already mentioned that Blackstone's Commentaries, 



47 

where the general rule is clearly stated, was as well known in the colonies as 
in the mother country. Besides, our fathers were not ignorant of the history 
of England, which, down to the Declaration of Independence, had been their 
history. The English law was also theirs. Not a case in its books which 
did not belong to them as well as to the frequenters of Westminster Hall. 
The State Trials, involving principles of constitutional law, and embodying 
these very precedents, were all known. Hargrave's collection, in several folios, 
had already passed through at least four editions some time before the adoption 
of our National Constitution. I cannot err in supposing that all these were 
authoritative guides in our country at that time, and that the National Consti- 
tution was fashioned in all the various lights, historical and judicial, which they 
furnished. 

The conclusion is irresistible, that when our fathers provided that on the 
trial of the President of the United States "the Chief Justice shall 'preside''' 
they used the term " preside " in the sense it had already acquired in parlia- 
mentary law, and did not intend to attach to it any different signification ; that 
they knew perfectly well the parliamentary distinction between a presiding offi- 
cer a member of t!ie house and a presiding officer not a member ; that in consti- 
tuting the Chief Justic presiding officer for a special temporary purpose they 
had in view similar instances in the mother country, when the lord keeper, 
chief justice, or other judicial personage had been appointed to " preside " over 
the House of Lords, of which he was not a member, as our Chief Justice is 
appointed to preside over the Senate, of which he is not a member; that they 
found in this constantly recurring example an apt precedent for their guidance ; 
that they followed this precedent to all intents and purposes, using, with regard 
to the Chief Justice, the received parliamentary language, that he shall " pre- 
side," and nothing more; that, according to this precedent, they never intended 
to impart to the Chief Justice, president ino temjwre of the Senate, any other 
powers than those of a presiding officer, not a member of the body ; and that 
these powers, as exemplified in an unbroken series of instances extending over 
centuries, under different kings and through various administrations, were simply 
to put the question and to direct generally the conduct of business, without 
undertaking in anyway, by voice or vote, todeteraiiiie any question preliminary, 
interlocutory, or final. 

In stating this conclusion I iiresent simplj^ the result of the authorities. It 
is not I who speak; it is the authorities. My own judgment may be imperfect; 
but here is a mass of testimony, concurring and cumulative, without a single 
exception, which cannot err. 

Plainly and unmistakably the provision in our Constitution authorizing the 
Chief Justice to -jvcside in the Senate, of which he is not a member, was modelled 
on the English original. This English original was, according to the language 
of Mr. Wirt, the "archetype" which our fathers followed. As such it was 
embodied in our Constitution as much as if the Constitution in its text expressly 
provided that the Chief Justice, when pi-csiding in the Senate, had all the powers 
accorded by parliamentary usage to such a functionary when presiding in the 
upper house of Parliament, without being a member thereof. In saying that 
he shall "preside" the Constitution confers on the Chief Justice no powers of 
membership in the Senate, and by the Avell-defined term employed, limits him to 
those precise functions sanctioned at the time by immemorial usage. 

Thus far I have considered this provision in the light of authorities already 
known and recognized at the adoption of the national Constitution. This is 
enough ; for it is by these authorities that its meaning must be determined. You 
cannot reject these without setting at defiance a fixed rule of interpretation, and 
resorting instead to vague inference or mere imagination, quickened, perhaps, by 
your desires. Mere imagination and vague inference — quickened, perhaps, by 
your desires — are out of place when parliamentary law is beyond all question. 



48 

Pardon me if I protract tliis argument by an additional illustration derived 
from our own congressional history. This will be found under the parallel 
provision of the Constitution relating to the Vice-President, which, after much 
debate in another generation, received an authoritative interpretation. It is as 
lollows : " The Vice-President of the United States shall be President of the 
Senatc,\i\}X shall have no vote unless they be equally divided." In other words, 
the Vice-President, like the Chief Justice, shall y;;-f'i/r^," in the .Se/?a/'e, but, unlike 
the Chief Justice, Avith a casting vote. His general powers are all implied in 
the provision that he shall preside. 

No question has occurred with regard to the vote of the Vice-President, for 
this is expressly regulated by the Constitution. But the other powers of the 
Vice-President, when j>residing in the Senate, are left to parliamentary law and 
express rules of the body. Some of the latter were settled at an early day. On 
looking at the rules of the Senate adopted at the beginning it will be found that, 
independent of his casting vote, nothing was originally recognized as belonging 
to a presiding Vice-President beyond his power to occupy the chair. All else 
was determined by the rules. For instance, senators, when speaking, are to 
address the Chair. This rule, which seems to us so superfluous, was adopted IGth 
April, 1789, early in the session of the first Congress, in order to change the 
existing parlianKnitary law, under Avhich a member of the upper house of Parlia- 
ment habitually addresses his associates, and never the Chair, Down to this 
day, in England, a peer, rising to speak, says, " My Lords," and never " My 
Lord Chancellor," although the latter presides. Another rule, adopted at the 
same date, has a similar origin. By parliamentary law, in the upper house of 
Parliament, when two members rise at the same time, the House, by tiieir cry, 
indicate Avho shall speak. This was set aside by a positive rule of the Senate 
that in such a case " the president shall name the person to speak." The parlia- 
mentary law, that the presiding officer, whether a member or not a member, 
shall put the question, was re-enforced by an express rule that "all questions 
shall be put by the president of the Senate." 

Although the rules originally provided that when a member is called to order 
" the president shall determine whether he is in order or not," they failed to 
declare by whom the call to order should be made. There was nothing conferring 
this power upon the presiding officer, while, by parliamentary law in the upper 
house of Parliament, no presiding officer, as such, could call to order, whatever 
he might do as a member. The powers of the presiding officer in the Senate were 
left in this uncertainty ; but the small numbers of senators and the prevailing 
courtesy prevented trouble. At last, in the lapse of time, the numbers increased 
and the debates assumed a more animated character. MeauAvhile, in 1825, Mr. 
Calhoun became Vice-President. This ingenious person, severely logical, and 
at the same time enjoying the confidence of the country to a rare degree, insisted 
that, as a presiding officer, he had no power but to carry into effect the rules 
adopted by the body, and that, therefore, in the absence of any rule on the 
subject, he was not empowered to call a senator to order for words spoken in 
debate. His conclusion was given as follows : 

The ciiair had no po^ver beyond the rules of the Senate. It irould stand in the light of a 

usurper ivcre it to attempt to exercise such a power. It was too high a power for the Chair. 

^ * * * Xhe Chair wouhl never assume any power not vested in 

it; but would ever show firmness in exercising those powers that Vi'ere vested in the Ciiair. 

(Congressional Debates, 18'2.5-'20, p. 759.) 

The question Avith regard to the poAvers of the Chair Avas transferred from the 
Senate chamber to the public press, where it Avas discussed Avith memorable 
ability. An article in the National Intelligencer, under the signature of Patrick 
Henry, attributed to John Quincy Adams, at the time President, assumed that 
the poAvcrs of the Vice-President, in calling to order, Avere not derived from the 
Senate, but that they came strictly from the Constitution itself, which authorizes 



49 

him to preside, and that in their exercise the Vice-President was wholly inde- 
pendent of the Senate. To this assumption Mr. Calhoun replied in two articles, 
under the signature of Onslow, where he shows an ability not unworthy of 
the eminent parliamentarian whose name he for the time adopted. The point 
in issue was not unlike that now before us. It was insisted, on the one 
side, that certain powers were inherent in the Vice-President as presiding 
officer of the Senate, precisely as it is now insisted that certain powers are 
inherent in the Chief Justice when he becomes presiding officer of the Senate. 
Mr. Calhoun thus replied, in words applicable to the present occasion : 

I affirm that, as a presiding officer, the Vice-President bas no inherent power whatever, 
unless that of doing icliat the Senate may prescribe hy its rules he such a poiccr. There are, 
indeed, inherent powers, but they are in the body and not in the officer. He is a mere agent 
to exercise the will of the former. He can exercise no power which he does not hold by 
delegation, express or implied. (Calhoun's Life and Speeches, p. 17.) 

Then again he says, in reply to an illustration that had been employed : 

There is not the least analogy between the rights and duties of a judge and those of a pre- 
siding officer in a deliberative assembly. The analogy is altogether the other way. It is 
between the court and the House. (Ibid., p. 20.) 

It would be difficult to answer the reasoning of Mr. Calhoun. Unless all the 
precedents, in unbroken series, are set aside, a presiding officer not a member of 
the Senate has no inherent powers except to occupy the chair and to put the 
question. All else must be derived from grant in the Constitution or in the 
rules of the body. In the absence of any such grant we must be contented to 
observe the mandates of the " Lex Parlia?nentaria." The objections of Mr. Cal- 
houn brought to light the feeble powers of our presiding officer, and a remedy 
was forthwith applied by an amendment of the rules, making it his duty to call 
to order. Thus to his general power as presiding officer v/as superadded, by 
express rule, a further power not existing by parliamentary lav/; and such is 
the rule of the Senate at this day. 

I turn away from this Vice-Presidential episode, contenting myself with 
reminding you how clearly it shows that, independent of the rules of the Sen- 
ate, the presiding officer as such had small powers ; that he could do very little 
more than put the question and direct the Secretary ; and, in short, that our 
fathers, in the interpretation of his powers, had tacitly recognized the time-hon- 
ored and prevailing usage of Parliament, which in itself is a commanding law. 
But a Chief Justice, when presiding in the Senate, is not less under this com- 
manding law than the Vice-President. 

Thus far I have confined myself to the parliamentary law governing the 
Upper House of Parliament and of Congress. Further illustration may be 
found in the position of the Speaker, whether in the House of Commons or the 
Plouse of Representatives. Here there is one cardinal distinction to be noted 
at the outset.' The Speaker is always a memher of the House, in which respect 
he differs from the presiding officer of the upper house in either country. As 
a m.ember he has a constituency which is rSpreseuted through him ; and here is 
another difference. The presiding officer of the upper house has no constitu- 
ency. Therefore his only duty is to preside, unless some other function be 
supei-added by the constitution or the rules of the body. 

All the authorities make the Speaker merely the organ of the House, except 
so far as his representative capacity is recognized. In the Commons he can 
vote only when the house is equally divided. In our House of Representatives 
his name is sometimes called, although there is no tie ; but in each case he votes 
in his representative capacity, and not as Speaker. In the time of Queen Eliza- 
beth it was insisted that " because he was one out of our own number and not 
a stranger, therefore he hath a voice." But Sir Walter Raleigh replied that 
" the speaker -vvas foreclosed of his voice hy taking that place." (D'Ewes's Joui'- 
nals, 683, 684.) The latter opinion, which has been since overruled, attests the 
disposition at that early day to limit his powers. 



50 

Gushing, in his elaborate work, brings together numerous illustrations under 
this head Here is his own language containing the essence of all : 

The presidiuo: officer, though entitled ou all occasions to be treated with the g^reatest atten- 
tion and respect by the individual members, because the power and dignity and honor of the 
assembly are officially embodied in his person, is yet but the seriiant of the House, to declare 
\ts will and to obey implicitly all its commands. (Cushing's Lex Parliamentaria, sec. 294.) 

The duties of a presiding officer are of such a nature, and require him to possess so entirely 
and exclusively the confidence of the assembly, tliat, with certain exceptions, wliich will 
presently be mentioned, lie is not allowed to exercise any other functions than those which 
properly belong to his office; that is to say, he is excluded from submitting propositions to the 
assembly, from participating in its dtiiberations, and from voting. (Ibid., section 300.) 

•At an early day an English Speaker vividly characterized his relations to the 
House when he describes himself as "one of themselves to be the mouth, and, 
indeed, the servant of all the rest." (Hansard's Parliamentary History, vol. 2, 
p. 535.) This character appears in the memorable incident when King Charles 
in his madness entered the Commons, and going directly to the Speaker asked 
for the five members he wished to arrest. Speaker Lenthall replied in ready 
words, which reveal the function of the presiding officer: "May it please your 
Majesty, I have neither eyes to see, nor tongue to speak, m this place, but as the 
House is pleased to direct me, who.se servant I am here.'" (Hatsell, vol. 2, p. 
242.) This reply was as good in law as in patriotism Different Avords were 
employed by Sir William Scott, afterward Lord Stowell, when, in 1802, on 
moving the election of Mr. Speaker Abbott, he declared that a Speaker must add 
"to a jealous affection for the privileges of the House an awful sense of its duties." 
(Hansard's Parliamentary History, vol. 36, p. 915.) But the early Speaker and 
the great judge did not differ in substance. They both attest that the Speaker, 
when in the chair, is only the organ of the House and nothing more. 

Passing from the Speaker to the Clerk, we shall find still another illustration 
showing that the word vrcside, under which the Chief Justice derives all his 
powers, has received an authoritative interpretation in the Hules of the House 
of Representatives, and the commentaries thereon. I cite from Barclay's Digest 
the following suminary: 

Under the authority contained in the manner and the usage of the House, the Cleric pre- 
sided over its deliberations while there was no Speaker, but simply put questions and where 
specially authorized preserved order, not, hoicevcr, undertaking to decide questions of order. 
(Barclay's Digest, p. 44.) 

In another place, after stating that in several Congresses there was a failure to 
elect a Speaker for several days ; that in the twenty-sixth Congress there was a 
failure for eleven days ; that in the thirty-first Congress there was a failure for 
nearly a month ; that in the thirty-fourth and thirty-sixth Congresses, respect- 
ively, there was a failure for not less than two months, the author says : 

During the three last-named periods, while the House was without a Spe^iker, the Clerk 
presided over its deliberations ; 7iut, however, exercising the functions of Speaker to the extent of 
deciding questions of order, but, as in the case of other questions, putting them to the House 
for its decision. (Page ]14.) 

This limited power of the Clerk is thus described in a marginal note of the 
author — " Clerk inesides.''' The author then proceeds to say : 

To relieve future houses of some of the difficulties which grew out of the very limited power 
of the Clerk as a presiding officer, the House of the thirty-sixth Congress adopted the present 
14Gth and 147th rales, which provide that, ])ending tlie election of a Speaker, the Clerk shall 
preserve order and decorum, and shall decide all (juestions of order that may arise, subject 
to apjjeal to the House. (Page 114.) 

From this impartial statement we have a j) radical (hJijiiiio7i of the word^;?'e- 
sidc. It is difficult to see how it can have a different signification when it is 
said in the Constitution " the Chief Justice shall ^;?r5/f7e." The Avord is the 
same in the two cases, and it must have substantially the same meaning, whether 
it concern a Clerk or a Chief Justice. Nobody ever supposed that a prcsidivg 
Clerk could rule or vote. Can n. presiding Chief Justice? 



51 

The claim of n ]7rcsiding Chief Justice becomes stili more questionable when 
it is considered how positively the Constitution declares that the Senate " shall 
have the sole power to try all impeachments," and, still further, that conviction 
can be only by " the concurrence of two-thirds of the members present.^'' These 
two provisions accoi'd powers to the Senate solely. If a presiding Chief Justice 
can rule or vote, the Senate has not " the solo power to try ;" for ruling and 
voting, even on interlocutory questions, may determine the trial. A vote to 
postpone, to withdraw, even to adjourn, might, under peculiar circumstances, 
exercise a decisive influence. A vote for a protracted adjournment might defeat 
the trial. Notoriously such votes are among the devices of parliamentary oppo- 
sition. In doing anything like this a presiding Chief Justice makes himself a 
trier, and. if he votes on the final judgment, he makes himself a memher of the 
Senate; but he cannot be either. 

It is onl}' a casting vote that thus far the p/ esiding Chief Justice has assumed 
to give. But he has the same power to vote always as to vote when the Senate 
are equally divided. No such power in either case can be found in the Consti- 
tution or in parliamentary law. By the Constitution he, presides and nothing 
more, Avhile by parliamentary law there is no casting vote where the presiding 
officer is not a member of the body. Nor does there seem to be an3' difference 
between a casting vote on an interlocutory question and a casting vote on the 
final question. The first is determined by a majority, and the latter by two- 
thirds; but it has been decided in our country that " if the assembly on a divi- 
sion stands exactly one-third to two-thirds there is the occasion for the giving 
of a casting vote, because the presiding officer can then, by giving his vote, 
decide the question either way." (Cushing, Lex Parliamentaria, section 306.) 
This statement reveals still further how inconsistent is the claim of, the presiding 
Chief Justice with the positive requirement of the Constitution. 

I Avould not keep out of sight any consideration which seems in any quarter 
to throw light on this claim ; and therefore I take time to mention an analogy 
which has been invoked. The exceptional provision in the Constitution, under 
which the Vice-President has a casting vote on ordinary occasions, is taken 
from its place in another clause and applied to the Chief Justice. It is gravely 
argued that the Chief Justice is a substitute for the Vice-President, and, as the 
latter, by express grant, has a casting vote on ordinary occasions, therefore the 
Chief Justice has such when presiding on an impeachment. To this argument 
there are two obvious objections : first, there is no language giving any casting- 
vote to the Chief Justice, and in the absence of express grant, it is impossible 
to imply it in opposition to the prevailing rule of parliamentary law ; and, 
secondly, it is by no means clear that the Vice-President has a casting vote 
when called to preside on an impeachment. On ordinary occasions, in the 
business of the Senate, the grant is explicit ; but it does not follow that this 
grant can be extended to embrace an impeachment, in face of the positive pro- 
visions of the Constitution, by which the power to Ir?/ and vote are confined to 
senators. According to the undoubted rule of interpretation, ut res ?nagis valeat 
quani pereat, the casting vote of the Vice-Pi-esident must be subject to this 
curtailment. Therefore, if the Chief Justice is regarded as a substitute for the 
Vice-President, it will be only to find himself again within the limitations of 
the Constitution. 

I cannot bring this survey to an end without an expression of deep regret that 
I find myself constrained to differ from the Chief Justice. In faithful fellowship 
for long years we have striven together for the establishment of liberty and 
equality as a fundamental law of this republic. I know his fidelity and revere 
his services, but not on this account can I hesitate the less when I find him 
claiming for himself in this chamber an important power which, in my judg- 
ment, is three times denied in the Constitution : first, when it is declared that 
the Senate alone shall try impeachments ; secondly, when it is declared that 



52 

members only sliall convict; and, thirdly, when it is declared that the Chief 
Justice $ha\\ 2>r€sidc, and nothing more, thus conferring upon him those powers 
only which by parliamentary law belong to a presiding officer not a member 
of the body. In the face of such a claim, so entirely without example, and of 
such possible consequences, I cannot be silent. Reluctantly and painfully I 
offer this respectful protest. 

There is a familiar saying of jurisprudence, that it is the part of a good judge 
to amplify his jurisdiction ; Boni judicis est. ampliare jurisdictionem. This 
maxim, borrowed from the horn-books, was originally established for the sake 
of justice and humanity, that they might not fail ; but it has never been extended 
to otlier exercises of authority. On the contrary, all accepted maxims are 
against such assumption in other cases. Never has it been said that it is the part 
of a good presiding officer to amplify his power ; and there is at least one obvious 
reason — a pi'esiding officer is only an agent, acting always in the presence of 
h\s jfrhicipal. Whatever may be the promptings of the present moment, such 
an amplification can find no sanction in the Constitution or in that parliamentary 
law from which there is no appeal. 

Thus, which way soever we turn, whether to the Constitution or to parlia- 
mentary law, as illustrated in England or the United States, we are brought 
to conclude that the Chief Justice in the Senate chamber is not in any respect 
Chief Justice, but only presiding officer; th'it he has no judicial powers, or, in 
other words, powers to try, but only the powers of a presiding officer, not a 
member of the body. According to the injunction of the Constitution, he can 
jncsidc — "the Chief Justice shall ^re^zVZc; " but this is all, unless other powers 
are superadded by the concession of the Senate, subject always to the constitu- 
tional limitation that the Senate alone can try, and, therefore, alone can rule or 
vote on questions which enter into the trial. The function of a presiding officer 
may be limited, but it must not be disparaged. For a succession of generations 
great men in the law, chancellors and chief justices, have not disdained to 
discharge it. Out of the long and famous list I mention one name of sur- 
passing authority. Somers, the illustrious defender of constitutional liberty, 
unequalled in debate as in judgment, exercised this limited function without 
claiming other power. He was satisfied to jncside. Such an example is not 
unworthy of us. If the present question could be determined by sentiments of 
personal regard, I should gladly say that our Chief Justice is needed to the 
Senate more than the Senate is needed to him. But the Constitution, which 
has regulated the duties of all, leaves to us no alternative. We are the Senate ; 
he is the presiding officer ; although, whether in the court-room or the Senate 
chamber, he is always the most exalted servant of the law. This character he 
cannot lose by any change of seat. As such he lends to this historic occasion 
the dignity of his presence and the authority of his example. Sitting in that 
chair, he can do much to smooth the course of business, and to fill the chamber 
with the spirit of justice. Under the rules of the Senate he can become its 
organ, but nothing more. 



LBAp'05 



